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Today the Supreme Court granted certiorari in three cases that consider what types of religious organizations can qualify for a “church” plan under ERISA. The plaintiffs in that case are challenging a 30-year-old IRS Rule. As I understand it, the Obama Administration did not file a brief in the lower courts, nor did it file a cert-stage brief. Before the Supreme Court, the Solicitor General will almost certainly have to file a merits brief. But who will submit it?

Thanks to the helpful calculations of Sean Marotta of #AppellateTwitter, the SG’s brief would be due on January 23, 2017–three days after the inauguration. At some point beforehand, the Solicitor General would usually meet with the Departments of Treasury, Labor, and other administration officials to determine the government’s position. But here we are at a crucial juncture. There is a strong chance that the Trump Administration would take a different position on the scope of church plans than the Obama Administration has. (I am already having awful flashbacks to ERISA from my Zubik writings).

In an ideal world, with a “successful transition,” the outgoing Solicitor General would coordinate with the incoming Solicitor General, so that a brief could be timely filed on January 23. Or, alternatively, there could be some sort of coordination, and the Court can be asked for an extension. Sean noted that with an extension, top-side amici would be due on February 6, which would be tight to still argue this term.

What that meeting would look like is complicated. Officials who are not yet confirmed–such as the incoming Solicitor General, Solicitor of Labor, and Secretary of the Treasury–would attend meetings that are protected by the attorney client privilege. Does anyone have any insights into how this role was performed by the Bush and Clinton administrations?

Worse-case scenario would be an Obama brief filed on January 19, and promptly withdrawn by the new SG (Noel Francisco?). This would not be unprecedented.

For example, the Bush Administration filed a cert petition in EPA v. NJ on August 8, 2008. On February 6, 2009–two days after it was distribued for conference–Acting Solicitor General Edwin Kneedler moved to dismiss the petition.

Since the petition for a writ of certiorari was filed, EPA has decided, consistent with the court of appeals’ ruling, to develop appropriate standards to regulate power-plant emissions under Section 7412. In light of EPA’s decision, the government no longer seeks review of the court of appeals’ holding that Section 7412(c)(9) provides the sole mechanism for delisting power plants as a covered source category.

In other words, the Obama administration–upon further reflection/election–decided to reverse the prior President’s environmental policy. The Court obliged and dismissed the case.

Jon Adler’s tweet is on point:

@AlisonFrankel Obama administration withdrew Bush cert petition in big enviro case (NJ v EPA) and SCOTUS didn’t bat an eye 2/2

— Jonathan H. Adler (@jadler1969) November 26, 2016

As January 20 rapidly approaches, the Obama Administration has taken affirmative steps to wind down its role in the litigation concerning U.S. v. Texas, but not in House of Representatives v. Burwell. With respect to the contraceptive mandate litigation, the government has taken the former approach.

On November 30, the Justice Department filed notices in several courts of appeals, asking for an extension until February 2017 to file any further responses. For example, here is the status report from the Eighth Circuit:

Pursuant to this Court’s order of October 3, 2016, the Departments file this status report to inform the Court of recent administrative developments. As we explained in our prior Status Reports, the Departments issued a Request for Information (RFI) to determine whether further modifications or alternatives to the existing accommodation could resolve the Religious Freedom Restoration Act objections asserted by various organizations while still ensuring that the affected women seamlessly receive full and equal health coverage, including contraceptive coverage. See 81 Fed. Reg. 47,741 (published July 22, 2016) (comment period closed September 20, 2016). In response to the RFI, the Departments received approximately 54,000 comments. The Departments are evaluating the information submitted to determine whether changes to the current accommodation regulations should be made and, if so, to inform the nature of those changes. The Departments respectfully request that the Court take no action at this time and allow the government 90 days, to and including February 28, 2017, to submit its next status report.

Though the reports do not note the impetus of this request, it is safe to assume that the Obama Administration is now handing the case over to the Trump administration.

Lyle Denniston reports that only one plaintiff, Heartland Christian College, objected to the continuance. The College wants a prompt resolution. Their objection is rooted in one of the greatest failings of Zubik–as I discuss in Unraveled and Gridlock–the failure to address “self-insured” plans.

In addition, it should be noted that CNS Ministries and HCC have self- insured plans. This arrangement was not addressed in the Zubik order, which contemplates only nonprofit objectors who have outside insurance issuers that provide health coverage to employees. See Zubik at 1560 (“Petitioners have clarified that their religious exercise is not infringed where they ‘need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,’ even if their employees receive cost-free contraceptive coverage from the same insurance company.”) (emphasis added). Here the insurers are the appellees themselves, CNS Ministries and HCC. There is no outside insurance company between these appellees and their employees, and to our knowledge, the Government has never demonstrated that it has the authority, by statute or implementing regulation, to direct an objecting employer’s TPA to provide abortifacients to employees absent the employer’s authorization or approval. The Government has not acknowledged this issue. The Government should accordingly either provide a firm date for proposing a workable accommodation going forward, dismiss its appeal in this case, or agree to proceed in this Court on the merits.

This argument is 100% correct. The government lacks the power to compel self-insured plans to direct the college’s third-party administrator to provide contraceptive coverage, without the college’s written authorization. Nor can they fine such employers that do not comply. This is a pointless legal mandate that serves no purpose. One of the first executive actions a Trump Administration could take would be to simply exempt employers with self-insured plans from the contraceptive mandate, altogether. (A similar treatment should be applied to all employers with church plans) That would eliminate the biggest conflict the Court could’t resolve. I discuss this option in my post-election analysis of Zubik.

The FantasyJustice market has been defined by a wave of surges. In the past 24 hours, Judge Sykes has surged back into fourth place with fifty-seven votes (30 from unique IP addresses). Justice Canady is still floating in 3rd place from his earlier surge. Judge Kethledge, who surged into second place last week, has fallen into seventh place, with few votes in the last 24 hours.