Blog

I recently completed the manuscript for my article, Presidential Maladministration. I have hesitated putting it on SSRN, because it will need some tweaks in light of the election. (Because it is cited in FN 431 on p. 294 of my Harvard Law Review piece, I had to deposit an earlier draft in the HLS library). The thesis argues in short, that courts should express some degrees of skepticism when the White House is involved in the regulatory process. I take exception with then-Professor Kagan’s article Presidential Administration, which argues that courts should be even more deferential when the President leaves his fingerprints on a rulemaking.

One species of presidential maladministration I write about will soon become extremely relevant–what I call “Presidential Reversals.” Here is a portion of that paper, which I will be referring to in future blog posts.

            The first species of presidential maladministration is by far the most commonplace: when the incumbent administration abandons a previous administration’s interpretation of a statute. Every four-to-eight years, to comply with the new President’s regulatory philosophy, political appointees in agencies alter certain interpretations of the law—often with direction from the top. These changes are not always implemented through the formal notice-and-comment process, but rather are manifested through informal opinion letters, guidance, and even legal briefs. Regardless of their form, these presidential reversals are the ultimate, and clearest forms of commander-in-chief nudging to the administrative state.

There is nothing nefarious about a new administration disagreeing with a previous administration. Indeed, it is quite natural that presidents see things differently. The only question that remains is how should courts treat this reversal. Outside of Chevron’s framework, the Court has maintained that presidential reversals are “entitled to considerably less deference.”[1] In recent years, the Roberts Court—led by the Chief Justice himself—has faulted the Solicitor General’s abandonment of earlier positions “upon further reflection.” However, within the cozy confines of Chevron’s domain, old interpretations of ambiguous statutes are not “written in stone,” so “sharp break[s] with prior interpretations” do not weaken deference. Both blends of reversals are policy decisions all the way down, and should give courts pause that the newly-minted interpretation is any more reasonable than the abandoned on.

…

Perhaps the most visible manifestation of a presidential reversal is the phrase “upon further reflection.” This is a euphemism the government invokes to indicate that it is abandoning an earlier position for a new one. Tony Mauro, veteran Supreme Court reporter for the National Law Journal, pointed out that in the Solicitor General’s office, “upon further reflection” is usually understood to mean “upon further election.”[1] This phrase has primarily been used by the Solicitor General to alter a position the Justice Department took earlier in the lower courts during the course of litigation.[2] However, at times, the phrase “further reflection” has been employed as a euphemism for “the new administration sees things differently.”

For example, in a 1985 brief to the Court in Evans v. Jeff D., President Reagan’s acting Solicitor General rejected a position taken by President Carter’s Solicitor General involving attorney’s fees in civil rights actions[3] in White v. New Hampshire Dep’t of Employment Security.[4]  “Upon further reflection, and with the benefit of nearly four years of experience under the Equal Access to Justice Act,” the brief stated, “we have concluded that our earlier suggestion was impractical and that the ethical concerns, though not insignificant in particular cases, are neither so frequent nor so intractable as to call for the per se rule adopted by the court of appeals.”[5] The reference to “nearly four years” is a clear repudiation of the statement made by President Carter’s holdover Solicitor General, over three months after President Reagan’s inauguration. This is a quintessential example of a presidential reversal following “further reflection.” Ultimately, the Court did not reach this issue in Evans.[6]

I was not able to locate any usages of the phrases “further reflection” from the Solicitors General in the Bush, Clinton, or Bush Administrations. However, for three cases argued during the October 2012 term, the Obama administration engaged in some deep reflection. In Kiobel v. Royal Dutch Petroleum, a group of Nigerian nationals living in the United States brought suit “alleging that the corporation [defendants] aided and abetted the Nigerian Government in committing violations of the law of nations in Nigeria.”[7] The Court granted certiorari to determine whether it could “recognize a cause of action under the Alien Tort Statute (ATS), for violations of the law of nations occurring within the territory of a sovereign other than the United States.”[8] The ATS, enacted as part of the canonical Judiciary Act of 1789, provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”[9]

In 1795, Attorney General William Bradford issued an opinion interpreting the ATS.[10] In the 2008 case of American Isuzu Motors, Inc. v. Ntsebeza, the Bush Administration’s State Department read Bradford’s opinion to confirm that ATS claims could not be brought for conduct “in a foreign country.”[11] Citing the Bradford opinion, then-Solicitor General Paul Clement told the Court that “The presumption against extraterritorial legislation was well-established at the time the ATS was adopted.”[12]

After the change in administration, however, that position flipped. In his brief, Solicitor General Donald Verrilli explained that “on further reflection, and after examining the primary documents,” the State Department “acknowledges that the opinion is amenable to different interpretations.”[13] Now, the government concluded that the ATS “could have been meant to encompass . . . conduct” outside the United States.[14]

During oral arguments, when the Solicitor General articulated that the “ATS causes of action should be recognized,” Justice Scalia interjected. “That is a new position for the State Department, isn’t it?” Verrilli replied, “It’s a new–.” Justice Scalia interrupted him again. “Why should we listen to you rather than the solicitors general who took the opposite position . . . not only in several courts of appeals, but even up here.” The Solicitor General replied that the United States has “multiple interests,” including “ensuring that our Nation’s foreign relations commitments to the rule of law and human rights are not eroded.” He continued, “It’s my responsibility to balance those sometimes competing interests and make a judgment about what the position of the United States should be, consistent with existing law. And we have done so.”

Justice Scalia, once again interrupted the Solicitor General. “It was the responsibility of your predecessors as well, and they took a different position. So why should we defer to the views of the current administration?” With a dash of humor, Verrilli answered, “because we think they are persuasive, Your Honor.” Over laughter, Scalia answered, “Oh, okay.” Chief Justice Roberts was not persuaded. Reaffirming Scalia’s position, Roberts warned, “whatever deference you are entitled to is compromised by the fact that your predecessors took a different position.” Ultimately, agreeing with the government’s new position, the Court determined that “Attorney General Bradford’s opinion defies a definitive reading and we need not adopt one here.”[15]

In Levin v. United States, the second case in this reflection trilogy, the petitioner suffered an injury at a Naval Hospital, and sued the United States for a battery.[16] The Federal Torts Claim Act (FTCA) generally waives the Government’s sovereign immunity from negligence, but exempts intentional torts.[17] Levin claimed that the Medical Malpractice Immunity Act, commonly known as the Gonzalez Act, permitted him to bring suit against the United States for a battery.[18] In the 1990 case of United States v. Smith, the government rejected this construction of the Gonzalez Act.[19] Solicitor General Kenneth W. Starr’s brief told the Court that the FTCA was the exclusive remedy for such claims, and suits in federal court were not available.[20] The Supreme Court in Levin noted that its prior “decision in Smith was thus informed by the Government’s position.”[21]

After several changes in administration, however, that position flipped. In 2012, the government “disavow[ed] the reading of [the statute] it advanced in Smith.”[22] In a footnote, Solicitor General Verrilli stated expressly, “The government does not adhere to the statements in that brief” filed in 1990.”[23] Amicus curiae—appointed by the Court, because the United States agreed with the lower-court’s judgment—flagged this sudden reversal. “When every reader comes away with the same understanding of a provision,” amicus wrote, “it is powerful evidence that the shared understanding is the provision’s natural meaning.”[24] The friend-of-the-court added, “The government offers very little in response” to the explain the change after “remain[ing] consistent for many years.”

During oral arguments, Justice Kennedy asked the Government about changing its position concerning a “central theory for your interpretation of the Act.” He joked, “I know you would have been disappointed if we didn’t ask you about this.” Deputy Solicitor General Pratik A. Shah replied, “Yes, you are correct . . . This is a change of position. We revisited it.” Ultimately, the Court “agree[d] with the Government’s earlier view, and not with the freshly minted revision.”[25]

The final case in this triad was US Airways, Inc. v. McCutchen. The appeal considered whether an employee who recovered damages from a tortfeasor was required to reimburse his health benefits plan for the entire amount it had previously paid out, including attorney’s fees.[26] The employee argued that the so-called “common-fund doctrine,” would override the express terms of the policy, and allow him to withhold his attorneys fees from the reimbursable amount. In 2003, the Solicitor of Labor filed an amicus brief with the Supreme Court expressly rejecting this equitable defense, urging the Court to enforce the terms of the plan.[27]

After the change in administrations, that position flipped. In the government’s 2012 brief in McCutchen, the Solicitor General explained that “upon further reflection, and in light of this Court’s discussion” in a 2011 ERISA decision, “the Secretary [of Labor] is now of the view that the common-fund doctrine is generally applicable in reimbursement suits” under ERISA.[28] This is the exact opposite argument the Labor Department advanced nine years earlier.

During oral arguments, Chief Justice Roberts criticized Deputy Solicitor General Joseph R. Palmore about this reversal. “The position that the United States is advancing today,” Roberts said, “is different from the position that the United States previously advanced.” The Chief, with a tinge of annoyance in his voice said “further reflection” was “not the reason” why the position change. He added for emphasis, “it wasn’t further reflection.” Roberts, who had served in the Reagan and Bush administrations decades ago, asked rhetorically whether the real reason was that “we have a new secretary now under a new administration, right?” Palmore attempted to answer, “We do have a new secretary under a new administration,” but Roberts interrupted him. “It would be more candid for your office to tell us when there is a change in position that it’s not based on further reflection of the secretary. It’s not that the secretary is now of the view — there has been a change.”

Kiobel, Levin, and McCutchen, each raising the same issue, were argued during a span of four months. Sensing a disquieting trend, Chief Justice Roberts sent a message of sorts to the Obama administration: “We are seeing a lot of that lately. It’s perfectly fine if you want to change your position, but don’t tell us it’s because the secretary has reviewed the matter further, the secretary is now of the view. Tell us it’s because there is a new secretary.” Palmore responded that since the earlier brief was filed, the “law has changed.” The Chief Justice replied, “Then tell us the law has changed. Don’t say the secretary is now of the view. It’s not the same person. You cite the prior secretary by name, and then you say, the [new] secretary is now of the view. I found that a little disingenuous.” The Chief openly rebuked the Solicitor General’s office for using this malapropism to justify maladministration.  Supreme Court advocate Roy Englert Jr., who worked in the Solicitor General’s office, observed that Chief Justice Roberts was “making a broader point” with his criticism, referring to the recent string of cases where the Obama administration had reversed prior positions.[29]

…

The presidential reversal is not only the most common exercise of maladministration, but is also the most innocuous. First, it is completely transparent—and at times, nakedly so. In Kiobel, US Airways, and Levin, the Solicitor General flagged President Obama’s reversals through the phrase, “upon further reflection.” Even when the government does not use that phrase in a brief, it is not difficult for a reviewing court—at any level—to compare how previous administrations considered the same issue. In most cases, the parties challenging the reversal will be quick to raise these departures. In Chevron, State Farm, and Rust, it was utterly obvious that the positions changed when a President of a different party took office. Specific evidence that President Reagan told his cabinet to disregard Carter-era regulations is unnecessary. This form of administration is readily apparent, and the Court recognized it. Like any late-night infomercial, the Court proved adept at applying this before-and-after framework in Watt, Cardoza-Fonseca, Georgetown, and Good Samaritan.

Second, in cases of a presidential reversal, judicial review always remains as a valid check. When a new administration alters an old interpretation, someone will draw the short straw. In State Farm, for example, insurers would lose out on the savings that resulted from the passive safety measures. In Chevron, environmental groups would lose out from laxer emission standards. In Rust, doctors would lose funding for providing family planning services. These injuries suffice to constitute Article III standing. As a result, courts can review, and potentially reverse reversals that are unworthy of deference—whether they are unreasonable under Chevron, or arbitrary and capricious.

Presidential reversal only becomes problematic when it is combined with presidential discovery or nonenforecment. This tandem approach transcends an agency interpreting statutes in news ways. Rather, as we will discuss in the next section, this form of maladministration emboldens the White House to expand its jurisdiction, or confer substantive rights, or exercise abstention, in ways that are incompatible with congressional design. In some instances, where parties benefit, and none are injured, judicial review to check arbitrary exercises of power is unavailable. For such cases, standing is the government’s greatest, and only defense.

I fully expect (and hope) that the Trump Administration will reverse a number of President Obama’s policies. But in doing so, the next Solicitor General should not only say they changed upon “further reflection,” but articulate what the new administration has determined that they are unlawful. I suggest that this should be done with respect to immigration and the contraceptive mandate in this post.

Earlier this week I published a high-level piece in National Review explaining how the election will likely shrink the Court’s docket with respect to U.S. v. Texas, Gloucester County v. GG, and Zubik v. Burwell. In this post, I will delve into the details of how I see these issues winding down in light of the change in administration.

U.S. v. Texas

It should come as no surprise that on January 20, President Trump will almost certainly rescind DAPA. That would put an end to the U.S. v. Texas litigation, which is currently parked in Judge Hanen’s court in Brownsville. (I am still grateful I had the chance to visit in August). What remains to be seen is how the policy is cancelled. For reasons that I will discuss in a forthcoming piece titled Presidential Maladministration (to be submitted in the spring review period, after some timely tweaks), it is suboptimal for one administration to reverse the interpretation of a statute of a previous administration, simply because of a disagreement over policy. This practice, which I refer to as “Presidential Reversals,” is looked upon somewhat skeptically by the courts outside the context of Chevron. (Within Chevron’s domain, presidential reversals are optimal). The better route is to change a position because a subsequent administration determines that the prior position was unlawful. DAPA, perhaps more than any other Obama-era executive policy, screams for this affirmative repudiation.

On January 20, the President should direct his new Homeland Security Secretary to withdraw Secretary Johnson’s 11/20/14 DAPA memorandum. Simultaneously, the Office of Legal Counsel should formally withdraw its 11/20/14 DAPA opinion. In doing so, OLC should explain that it has now determined that the 2014 opinion was wrong, and that DAPA is both procedurally and substantively unreasonable. It would be sufficient to cite Judge Smith’s opinion for the 5th Circuit. (Judge Smith’s opinion did not address the Take Care clause–something OLC probably does not want to weigh in on). This affirmative repudiation of the basis of the policy prevents future executive branches–in theory at least–from relying on this past practice. As we learned in Noel Canning, the Court is extremely deferential to the internal practices of the executive branch–what Justice Scalia called in his concurring opinion an “adverse possession” theory of executive power. The executive should not be able to suspend the law under the bogus guise of prosecutorial discretion. And lest DAPA supporters think this is a bad idea, I would hope such a clearly-stated policy in the early days of a Trump administration binds President Trump himself in the future.

Title IX Litigation

Currently, there are several cases pending throughout the federal judiciary concerning the import of the Department of Education’s “Dear Colleague” letter interpreting Title IX prohibition of “sex” discrimination to also include a prohibition on “gender identity” discrimination. The Court has already granted certiorari on Gloucester County School Board v. GG with respect to second and third questions:

2. If Auer is retained, should deference extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought?

3. With or without deference to the agency, should the Department’s specific interpretation of Title IX and 34 C.F.R. § 106.33 be given effect?

Another suit, brought by the Texas, facially challenged the legality of the “Dear Colleague” letter. In contrast, in GG a student claimed discrimination on the basis of gender identity, and cited the “Dear Colleague” letter as a basis for the case, but not the sole basis. The pressing variable is whether the Trump Administration withdraws  the “Dear Colleague” letter. If it does, Texas’s case automatically goes away, but GG’s does not–question 3 still remains available for resolution.

At that point, the Court would have a few options.

First, the petition can be DIG’d. The Court doesn’t need to give a reason for the DIG, but the import would be that indeed the grant was improvident in light of the government’s changed position. Critically, a DIG would leave the Fourth Circuit’s opinion in effect–although this would be strange, because the Fourth Circuit’s decision was premised entirely on Auer grounds. Circuit precedent would then be based on an opinion that was no longer valid. As I understand it, GG is about to graduate, but still seeks to use facilities in the school district for alumni events. A DIG would also provide further protection for GG with respect to facilities in Gloucester County schools, but nowhere else.

Second, the petition can be vacated and remanded in light of the withdrawal of the “Dear Colleague” letter. This could be a one-sentence order, and no explanation needs to be given–although it could be accompanied by a (Sotomayor) dissent. Formally, the remand would make sense to allow the lower court to consider in the first instance if GG’s interpretation of Title IX prevails de novo. Maintaining a circuit precedent based on a withdrawn opinion cannot be correct. Informally, this would buy the Court some time to have the case argued with a full bench.

Third, the Court can go ahead an argue the case. I’ve heard that the Court wanted this case argued in February–at that point, a new Justice will almost certainly have been nominated, but not yet confirmed. There is no requirement to delay the argument until a ninth Justice is confirmed. In the event that it is argued, and there are (at least) five votes for a majority opinion, it can be resolved with eight. But if the case is split four-to-four, it would be necessary to reargue the case.

In recent years, virtually all new Justices have been confirmed before the first Monday in October, so it has not been necessary to deal with the problem of a Justice confirmed in the middle of the term. But, as I understand the practice, in order for the new Justice to vote on the case, it will have to be reargued. That is, a newly confirmed Justices cannot simply review the transcript of a case argued before the confirmation. There are two examples in recent history that come to mind. First, in late 2005–at which point Justice Alito was nominated, but not yet confirmed–three cases were argued where Justice O’Connor would have cast the tie-breaking vote. (Hudson v. Michigan, Kansas v. Marsh, and Garcetti v. Ceballos). After Justice Alito was confirmed in January 2006, each of those cases were re-argued, and Alito cast the fifth vote in each. It wasn’t enough to have Alito simply read the transcript from the first argument. Fifteen years earlier, Justice Thomas did not assume office until October 23, 1991. By that point, 20 cases had been argued. (The court heard so many more cases back then!). Thomas would have only cast the tie-breaking vote in one of those cases–Doggett v. United States–so it was reargued in February 1992.

Here come’s the rampant speculation, which you are free to disregard. That the Justices granted certiorari on this case suggests that either (a) there were five votes for ruling on question 2 or 3, or (b) that they anticipated a new Justice would be confirmed before the case is decided. I am doubtful that it is the latter, in light of the fact that Trinity Lutheran remains in docket purgatory. The Justices seem hesitant to schedule any cases that is likely to split 4-4. Therefore, there could have been five votes to rule on this case as granted. On what grounds, we do not know: Question 2 or Question 3. If there were only five votes to rule for GG on Question 2–if the “Dear Colleague” letter is withdrawn–those five votes go away. If there were five votes to rule for GG on Question 3, those five votes would still remain. As I predicted, and Mike Dorf was on the same wavelength, this case may be resolved entirely on Question 3.

However, the Trump Administration could take proactive steps to nudge the Court towards a remand, rather than arguing it now. Consistent with my comments above, it is not enough to simply withdraw the “Dear Colleague” letter. Doing so would reflect a mere policy reversal.  A stronger technique would be a legal opinion stating that reinterpreting the phrase “sex” in Title IX in such a significant change that must be address through the notice-and-comment process, and it cannot be accomplished by a single letter.

This option has several benefits. First, it would, or at least should, give the five votes on the Court pause to think that de novo, this is the best interpretation of Title IX. Remember, once we are no longer in Auer land, it is not enough for the interpretation to be “reasonable.” If indeed the “Dear Colleague” created a profound change in longstanding policy, that by itself suggests that under de novo review, GG loses. Second, it would establish an official position within the Administration that policy cannot be changed through what I’ve referred to as “Regulation by Blog Post.” Process matters. The new approach could be dubbed “Deregulation by Blog Post.” As I noted above, setting benchmarks for limits on President Trump’s authority should be desirable by even those who support GG”s appeal. I sincerely hope conservatives do not drop their opposition to Auer deference now that there is a new sheriff in town. Finally, it would withdraw the memo without taking a substantive position on a serious culture war issue. Explaining that the Letter was unlawful to effect a change in policy is quite different than arguing that Title IX permits discrimination on the basis of gender identity. MSNBC may not care about the difference, but it is significant for courts.

In short, I think the best options would be to remand the case to the Fourth Circuit. Or the Court can simply decline to calendar the case–as they did with Trinity Lutheran–until a ninth member is confirmed. Scheduling it for argument in February, only to receive a letter from the Solicitor General on January 20 about the withdrawal of the “Dear Colleague” letter, would waste a lot of time and preparation efforts. The tenor of the argument changes radically depending on whether the question 2 is in play. Better choice: hang tight till everything settles.

More generally, I hope the Court considers adding a May, and possibly even a June sitting, to ensure that as many cases as possible are decided with a full bench. (I made this point in an interview with Kimberly Robinson on Bloomberg BNA in July). Also, there’s no requirement to rush to the finish on the last Tuesday in June–Justice Kennedy may wish to postpone his trip to Salzburg another year.

Zubik v. Burwell

The ongoing contraceptive mandate cases can also be removed from the docket, but the framework would be complicated. As I discuss in Unraveled and my new Harvard Law Review comment, the remand in Zubik v. Burwell was far more contested than the Court made it seem.

First, for employers with “Church Plans,” such as the Little Sisters of the Poor, the government conceded that they could not be fined for non-compliance. This exchange between Justice Alito and SG Verrilli explains the dynamics quite well:

Yet, even though the Little Sisters cannot be fined, the government is still requiring them to submit a signed document–whether a letter or EBSA Form 700.  This never made sense to me: why make them sign a document under protest that will in no way result in female employees receiving contraception coverage. To resolve the issue of employers with Church Plans, the government can issue a rulemaking that says something to the effect of, “In light of the fact that the government lacks the ability to penalize the employers with church plans, we will simply exempt such plans from the contraceptive mandate.” Call it the futility doctrine. This would put religious charities with church plans in the exact same boat as houses of worship with church plans–the latter are already exempted from the mandate. As it stands now, the female employees of the Little Sisters do not have access to contraception on their church-plans. Such a rulemaking would maintain that status quo, and absolve the Little Sisters from filling out a frivolous form they deem sinful. Of course, the government remains free to pay another third-party provider to offer contraception coverage–as Justice Alito suggested.

Second, a similar resolution applies for self-insured plans. Through a self-insured plan, the employer acts as its own insurer and assumes financial responsibility for its employees’ health care claims. To reduce the administrative burdens, these employers will contract with a third-party administrator, who will manage the administration of the plan. As the government conceded in its supplemental brief ERISA does not authorize the government to require the third-party administrator to provide payments independent of the employer’s plan. In effect, insurers cannot provide contraception coverage to the female employees on a self-insured plan unless the employer executes the instrument that creates the new legal obligation. Neither the government nor the challengers were able to figure out a way to resolve this legal dispute in the Zubik supplemental briefing. A similar rulemaking should be applied to self-insured plans, as apply to Church Plans: “To avoid the substantial burden on the free exercise of employers with self-insured plans, and in light of the fact that a less-restrictive means exist to serve the government’s interest, we will simply exempt such plans from the contraceptive mandate.” As noted above, the government remains free to pay another third-party provider to offer contraception coverage.

Third, for insured plans, the resolution is the simplest. With an insured plan, the employer purchases a group plan from a health insurer, such as Aetna. Aetna then manages all aspects of the group plan. The Affordable Care Act and its implementing regulations require Aetna to make payments for contraception coverage. If a religious employer notifies the government that it objects to the mandate and wants the accommodation, Aetna must provide contraceptive payments separately from the employer’s insured plan. In their order, the justices proposed that employers with insured plans would no longer need to object in the manner specified by the regulations. Instead, they might simply “inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds.” Once the insurance company is “aware that petitioners are not providing certain certain contraceptive coverage on religious grounds,” the same insurer can provide contraceptive payments directly to the employees.

In its supplemental brief, the solicitor general wrote that this modified accommodation would work “for employers with insured plans … while still ensuring that the affected affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.” The challengers mostly agreed that with respect to insured plans, 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.” But there was a critical distinction. This approach would be acceptable for the nonprofits so long as contraceptive payments were made pursuant to a totally “separate plan,” and only if the women were required to opt in to such a new insurance policy before seeking any reimbursements. To resolve this conflict, a rulemaking should provide that for insured plans, contraception can only be paid for through a separate plan.

Currently, the government sought additional comments following Zubik.  A response is due to the courts on November 30. That deadline should be extended, and the new administration should simply seek comments along the lines I discussed above.

Critically, these two solutions would apply not only to non-profit religious charities, but also for-profit employers with self-insured plans that profess bona fide religious objections to the mandate. As this article in Politico noted last month, the universe of objecting employers is fairly finite–most of them are involved in the litigation.

Since the 2014 high court ruling in favor of Hobby Lobby, only 52 companies or nonprofit organizations, have told the government they plan to opt out of Obamacare’s requirement to cover birth control because it violates their religious beliefs, according to a POLITICO review of Obama administration records obtained under the Freedom of Information Act.

That’s in addition to the employers who filed about 100 lawsuits against the contraception mandate, as well as an unknown number of employers that may have directly informed their insurer, instead of the government, of their religious objections — a tack taken, for example, by Georgetown University, a Catholic institution that offers insurance to students and employees.

…

“If that is anywhere close to the universe of entities [that object to the contraception mandate], that it is a little surprising,” said Tim Jost, a legal expert on the health law and a member of the Institute of Medicine.

This should not be an open-ended problem. Admittedly, this approach is not “seamless” and imposes a greater burden on female employees. Had Congress actually bothered to define how this provision would work, the President would be constrained. However, because Senator Mikulski–who sponsored the Women’s Health Amendment–was content to give the Obama Administration carte blanche to figure out the details, that same power now devolves to the Trump Administration. Broad delegations cut both ways. I’ve argued at some length that the accommodation system developed by the Obama Administration–where it decides that some religious groups are exempt, but other less-religious groups are non-exempt–is entirely ultra vires. The solutions I sketched out above would not suffer from that problem. Rather, (1) employers with church plans are not required to sign a futile form, (2) employers with self-insured plans are not compelled to amend their plans to do something they deem sinful, and (3) insured plans can be tweaked to provide coverage with far more ease.

Today the Harvard Law Review released its issue on the Supreme Court 2015 Term. The issue, dedicated to Justice Scalia, includes entries from authors such as Chief Justice Roberts, Justice Ginsburg, Justice Kagan, and … me! Looking at the cover page reminds me of the Sesame Street song, “One of these things is not like the other.” My entry, Gridlock, discusses U.S. v. Texas and Zubik v. Burwell.

Here is the introduction:

Two of the biggest cases at the Supreme Court this past term ended as they began: gridlocked. In Zubik v. Burwell, the Justices declined to decide the validity of the accommodation to the Affordable Care Act (ACA) contraceptive mandate. In United States v. Texas, the Court divided 4–4 on whether Deferred Action for Parents of Americans (DAPA) was lawful.

Both cases involved extremely delicate line drawing. In the former, the Justices had to determine whether compliance with the accommodation to the contraceptive mandate imposed a substantial burden on the free exercise of religious organizations. In the latter, the Court was called on to resolve the scope of the President’s prosecutorial discretion to shield from removal and grant lawful presence to nearly four million aliens. During oral argument — our only source of insights because neither case generated a decision on the merits — the Justices seemed divided on how to balance powerful competing concerns. In the end, the Court resolved neither case — at least for now.

The eight Justices can be forgiven for not being able to reach a clear decision. Congress, and not the courts, should lead the debates over such profound questions about religious liberty and the separation of powers. Indeed, critics allege that both suits are actually policy disputes masquerading as legal controversies. But these suits arose precisely because Congress did not grapple with these foundational issues. Congress was entirely silent about religious accommodations for the contraceptive mandate, and Congress affirmatively rejected a change to the immigration status quo. Consequently, the Administration seized on this inaction to justify executive actions that advanced an expansive change in policy.

To establish an elaborate scheme that picks and chooses which religious groups are exempted from the contraception mandate, the U.S. Department of Health and Human Services (HHS) cited its authority to define what should constitute “preventive care.” To effect a fundamental change in immigration policy, DAPA relied on two statutes that authorize the Secretary of Homeland Security to “[e]stablish[] national immigration enforcement policies and priorities” and to “perform such other acts as he deems necessary.” In both cases, the executive branch relied on anodyne delegations of authority to resolve profound questions of social, economic, and political significance — questions the legislature would not cryptically assign to the executive branch. Indeed, such polarizing bills could never have been enacted in the first instance in our current political climate. The five-page per curiam decision in Zubikand the one-sentence affirmance in Texas are the judicial fallout from our gridlocked government.

As Congress becomes more polarized, it becomes less able to resolve major questions affecting social, economic, and political issues. With his legislative agenda frustrated, the President takes executive action on those questions Congress either ignored or rejected by adding expansive glosses to generic delegations of authority. The courts are then called upon to assess whether the line the executive drew was within his delegated authority. But these disputes can be resolved on the more neutral principle of whether the agency can take such novel actions in the first instance. If the answer is no, there is no need for judges to draw that difficult line. These “major questions” should be returned to the political process — which is where they should have been decided to begin with.

My goal in this Comment is not to explain whether DAPA complies with the Immigration and Nationality Act (INA), or whether the contraception mandate’s accommodation violates the Religious Freedom Restoration Act of 1993 (RFRA). In fairness, the Court didn’t either. (Texas and Zubik — combined, only ten slip pages — are likely the shortest corpus ever for a faculty comment in the Harvard Law Review’s annual Supreme Court issue.) Rather, I use these two cases to illustrate the relationship between gridlocked government and the separation of powers. Part I applies this framework to Zubik v. Burwell to demonstrate why congressional silence does not vest the executive branch with the awesome authority to make foundational determinations affecting conscience. Part II analyzes United States v. Texas to explain how congressional gridlock does not license the expansion of the executive’s authority. I conclude with a preview of how these cases are likely to be resolved on remand.

Although in light of the election returns, Part III is now moot. As I discuss this morning in National Review, both Texas and Zubik will soon draw to a close due to changed administrative positions.

I am grateful to Josh Chafetz who wrote a thoughtful reply, fittingly titled Gridlock? HLR should include at least two Joshs in every issue.

After it became clear that Donald Trump would become President, my first though was about the Supreme Court’s docket. (You can tell where my mind was). In the wee hours of election night, as John Podesta told everyone to get some sleep (good luck with that!), I penned a quick post explaining how several of the cases currently on the Court’s docket will fall off. National Review published my new essay, exploring these cases at some length. The long-and-short of it is that all of the cases premised on some form of executive action (whether a policy memorandum, a “Dear Colleague” letter, etc.) will be gone. The Justices got off easy after deadlocking on U.S. v. Texas and Zubik v. Burwell. Those cases will never come back for a complete resolution.

In this piece, I talk about U.S. v. Texas, Zubik v. Burwell, Gloucester County v. GG, the Clean Power Plan litigation, and House of Representatives v. Burwell.

From the introduction:

President Obama’s administration has been defined by executive actions issued in response to congressional gridlock. At every stage, conservatives challenged those actions as violations of the separation of powers, and with the election of Donald J. Trump, each of them can now easily be rescinded. Though the Supreme Court will expand with a Trump nominee to replace Justice Scalia, its docket will get a lot smaller. What Obama’s pen-and-phone giveth, Trump’s Sharpie-and-Twitter will taketh away.

And the conclusion:

More generally, the insurance companies will have to deal with a unified government committed to repealing Obamacare. Because the Affordable Care Act was enacted in 2010 through the reconciliation process to avoid a Republican filibuster, the law can also be repealed through the same process in 2017. I am already planning the final book in my Obamacare trilogy. The first book was titled Unprecedented. The sequel, released last month, is titled Unraveled. The final entry will be called Undone.

Last Tuesday, I spoke with a reporter from the Texas Standard, a program that airs on public radio affiliates across the Lone Star State, about the effect of the election on the Supreme Court. At the time, my comments were exclusively about what would happen if Clinton was elected. In the intervening eight days, the Cubs won the World Series, my law school changed its name again, and Donald Trump won the White House! What a week!

For reasons I cannot begin to fathom, the segment wasn’t aired until the day after election day. As a result, my comments were mostly obsolete. At least she managed to include one quote I gave:

Most parts of a president’s legacy are pretty murky. If you’re trying to identify an administration’s long-term effect on the economy or the environment, well, good luck. But the Supreme Court is a different story. Josh Blackman is a professor at Houston College of Law.

“Can you think of much of what Ronald Reagan did that has an impact today? Maybe yes, maybe no,” Blackman says. “But Anthony Kennedy? Major impact. Antonin Scalia, until recently? Major impact. Much that Bill Clinton did that’s relevant today? Not much. Ginsburg and Breyer? Major impact.”

My colleague, Rocky Rhodes had far more substantive comments. Enjoy!