Upcoming DOJ Deadlines for US v. Texas, House of Rep. v. Burwell, and Zubik v. Burwell

February 18th, 2017

In the waning days of the Obama Administration, three significant cases were put on hold, giving the Trump Administration an opportunity to weigh in. Those deadlines will occur over the next 10 days.

First, following the 4-4 affirmance in United States v. Texas, the case was remanded back to the Southern District of Texas. On November 18, Texas and the United States government filed a joint motion to stay the merits proceedings until Monday, February 20, 2017. Judge Hanen agreed.

To date, the President has shown that he is very sympathetic to DACA. But much to my surprise, DAPA has not been formally rescinded–an action that would have no immediate effects, because the policy had never gone into effect. Complicating this analysis is the fact that on Friday, DHS Secretrary Kelly released a memoranda concerning immigration enforcement. The policy expressly rescinds all Obama-era policies that conflict with President Trump’s executive order, except DAPA (2014)  and DACA (2012).

However, footnote 1 specifically states that the November 2014 DAPA memorandum “will be address in future guidance.”

If I had to guess, on Monday DOJ will simply ask far more time, in light of the fact that it announced that the DAPA memorandum “will be addressed in future guidance.” There in no sense litigating this issue further if the policy is on the chopping block. Texas will be all too happy to comply. It is unlikely that DHS will announce in a pleading to the court that it is rescinding the policy. That will likely come shortly. In theory at least, Judge Hanen should be willing to dismiss the case on the rescinding of the policy, though I could imagine a circumstance where he asks for a consent decree, whereby the government pledges not to enact a substantially similar policy again in the future. (To make this tangible, Washington would no doubt demand a similar stipulation before voluntarily dismissing its challenge to the executive order, under the likelihood that a similar order could be re-entered in the future).

Second, on December 5, 2016, the D.C. Circuit ordered that House of Representatives v. Burwell be held in abeyance until Tuesday, February 21, 2017. (HHS opposed the motion). The outcome of this case is far more uncertain. As I understand it, the cost-sharing reduction (CSR) payments are to be made on the first of each month. Had the Trump Administration not made the payments on February 1, I would have expected a press storm from the insurance companies, charging that government was trying to destroy Obamacare. There was nothing. Absolute silence in fact. The dog did not bark. This suggests that the payments were made.

Perhaps the Trump Administration, like the Obama Administration before it, has determined that appropriations law is flexible enough to support the payment of the cost-sharing reductions. If that is the case, then the case could a very strange turn. The Trump Justice Department could continue to defend the payments, stating that (1) the House does not have standing and (2)  the payments are lawful. This would create the unlikely scenario where House Republicans are challenging a Republican President in court! That would be something I did not anticipate.

A for more likely scenario is that HHS requests more time to reply, stating that legislative changes to the ACA are afoot. The House of Representatives, more than any other party, would be privy to those developments. There is no sense ruling on a massive separation of powers dispute when (through the reconciliation process) the relevant provision may be rescinded. Not to burst anyone’s bubble, but I expect both parties to request more time. The D.C. Circuit will be all too happy to oblige. And don’t forget the intervenors. They are still lingering, because the court denied their motion to intervene while the stay is in effect. If the stay is extended, the intervenors will likely grouse, but they are still stuck on the outside.

Third, following the remand in Zubik v. Burwell, in several courts of appeals, HHS requested to stay proceedings until Tuesday, February 28. This case is perhaps the most complicated of all three. HHS had requested information about possible ways to reconcile the religious liberty conflicts, while still providing “seamless” access to coverage. Despite receiving thousands of submissions, the Obama administration determined that there is “no feasible approach.”

The government has several conceivable options here. First, it could continue to litigate the case, arguing (as did the Obama administration), that there is no RFRA violation because the accommodation as drafted is the least restrictive alternative. This seems like the most unlikely scenario possible, as the Court’s opinion suggested that it was not the least restrictive alternative. If it was, there would not have been a vacatur-and-remand. Further complicating this posture is that Acting Solicitor General Noel Francisco argued Zubik, so he (and all of his Jones Day colleagues) would likely be walled off from this case as it presses forward.

Second, the government could tell the courts that it needs more time to propose a new rule that provides greater protection for religious freedom. No doubt, the courts of appeals would be all too happy not to hold off on resolving this case. But I suspect this route will give way to vigorous litigation from female employees at religious employers who stand to lose contraceptive coverage. They will no doubt attempt to  intervene. These arguments, I think, are unlikely to succeed. The Supreme Court remanded the case to determine if there was some other way to resolve the dispute. After extensive consideration, the Obama Administration determined that it could not be worked out. This paves the way for the government to attempt a new solution that places greater weight on protecting religious freedom, and which, concomitantly, and makes coverage less “seamless.” Of course, the notion of “seamless” coverage–that SG Verrilli focused on in his briefs–came not from the statute, but from Judge Pillard’s opinion for the D.C. Circuit in the Priests for Life litigation. The ACA is entirely silent about how religious liberty is to be accommodated, so here–especially in light of the Zubik stalemate–the government has latitude to try a new policy.

Third, there is something of a nuclear option. While the Obama administration published its several accommodations and exemptions in the Federal Register, seeking notice and comment, it took a shortcut at the outset: the government adopted the Institute of Medicine’s recommendations of what drugs constitute preventive care in a blog post from August 2011. Yes, literally, government by blog post. The decision to include all FDA-approved contraceptives through the “preventive care” mandate has never gone through the notice-and-comment process. This asterisk on the HHS blog was the only process given to adopt what “preventive care” insurers must offer for women, without additional copays.

Therefore it can be modified in the same ad hoc fashion. The government can simply write the new religious accommodation procedure into the same blog post: any employer with a bona fide religious objection, can seek an exemption from providing any FDA-approved contraceptives on its plan. Then, the government can provide the contraceptive coverage to affected employees through alternative channels. This latter approach could be used to exempt not only the religious non-profits, but also the religious for-profits (such as Hobby Lobby) that are still waiting in the wings.

There is a lot to watch out for over the next 10 days.