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Thursday, July 4, 2013

Thoughts on the Big and Little Mandate

I've posted a few thoughts over here about the possible legal effect that delay in enforcement of the mandate that employers with over 50 employees provide health insurance for those employees might have on the contraception mandate. Those thoughts concern the effect on ripeness dismissals and the compelling interest standard under RFRA. The Becket Fund yesterday issued a statement that seems consistent with my ripeness discussion; given the finality of the rule, one would have to have an indication that the government were reconsidering that finality in order for ripeness considerations to be reactivated. But I am not certain about the title of the Becket Fund statement: "Abortion-drug Mandate Not Affected by Administration's Delay of Parts of Health Care Law." Might there be some effects, even if those effects do not relate to ripeness? Are there arguments about the contraceptives mandate that are affected by the decision to delay on the employer insurance mandate?

It would be useful to have some informed and thoughtful comment about the legal ramifications, if any, on the specific issue of the government's decision to delay enforcement of the "big" mandate on the pending cases involving the "little" mandate, either in response to my thoughts over at CLR Forum or otherwise. I hasten to add that I am not sure at all that there are any such effects; the provisions at issue are distinct. Just wondering.

UPDATE: Over in the comments at Volokh, Professor Jonathan Adler said this:

The problem is that the "big mandate" and the "little mandate" are based in different provisions of the law. One provision requires employers to provide qualifying health insurance or pay a penalty. A separate provision requires employer-provided plans to cover preventative services. The contraception mandate is based on the latter, and the penalties under this provision are far higher. The only way this decision can effect the contraception mandate is that it gives employers the option of avoiding the penalty by dropping their insurance coverage altogether, but they arguably have this option now in states with federal exchanges. The Administration's decision in no way insulates employers from the substantial penalties for failing to include contraception in their plans. In other words, this decision does not ease or delay the burden placed on any of the current plaintiffs.

And I said this in response:

Thanks, Jonathan. I suppose that's right. But might an argument like this work: by delaying the "big" mandate, the Administration is also saying something about the "little" mandate that might be relevant to the compelling state interest inquiry. That is because by delaying implementation of the big mandate, employers benefited by that delay will not need to comply with the little mandate as well. They will not need to provide contraceptive coverage to their employees during the delay. Employees of such employers will not get the benefit of the little mandate right now; the government's interest in getting them access to the benefits of contraception are yielding to the interests of the employers in cost, administration, etc.

So the argument from the point of view of the present plaintiffs might be: if the government's interest in the little mandate really were "compelling" (as that term is used in RFRA), the government would not be taking the steps that it is with respect to delay of the big mandate. It would be moving ahead at full speed to enforce that big mandate, in part to achieve the benefits of the little mandate for all of the employees out there that stand to gain. Instead, the government has chosen to selectively enforce the little mandate only as to those employers who already have a health plan in place. But if the government's interests in the little mandate truly were compelling (in the RFRA sense), then it would enforce that interest uniformly. It would not pick and choose when to enforce it. And it certainly would not permit the economic interests of employers interfere with its compelling interest.

I am not endorsing this argument. Just wondering whether it is a plausible one, even though the provisions are, as you say, different.

Prof. Adler is an astute observer of the constitutional scene and he has a firm grasp of the various provisions of the health care law, so he's probably right on this one. Still, any thoughts on this set issues would be welcome.

http://mirrorofjustice.blogs.com/mirrorofjustice/2013/07/thoughts-on-the-big-and-little-mandate-.html

DeGirolami, Marc | Permalink

Comments

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At minimum there's a parallel here: the government has prioritized a variety of things higher than the preventive services mandate. For example, the statute itself never says abortifacients or contraception need be preventive. Congress didn't care enough about it to even specify whether they are included or not. The administration admits that it has statutory discretion to offer a total religious exemption if it wants to, and it continually tweaks who is in, and who is out, and who is "accommodated." But it still doesn't follow RFRA and exempt all objectors. Then the statute says grandfathered plans, encompassing tens of millions of people, still have to comply with a variety of Obamacare requirements (like covering dependents up to age 26). But not the preventive services mandate--that one's not important enough to drive home in grandfathered plans. Now we see the bureaucracy scaling back on Obamacare implementation in a variety of ways that place administrative, financial, and plainly political motives over and above the substantive requirements of the law, including by removing one of the preventive mandate incentives. All this amounts to the impossibility of calling the abortifacient contraceptive sterilizing mandate an interest "of the highest order." Statutorily and bureaucratically, there are lots of things given a higher order. This is a second class mandate any way you look at it, except politically (and government has no compelling interest in preserving the president's poll numbers).

Posted by: Matt Bowman | Jul 5, 2013 11:09:41 AM

Right, this is the sort of argument I was envisioning. Because the compelling interest inquiry is ineffably qualitative in this way, it will depend on a range of atmospheric assessments, and those assessments might relate to what the government does with and how it treats distinct, but related, features of the general statutory scheme. If it looks like the government is assuming greater discretion about when and how to enforce a particular primary obligation (the big mandate) which, if and when enforced, will itself trigger an additional subsidiary obligation (the little mandate), then the importance of the subsidiary obligation seems in some way to depend on decisions made with respect to the primary obligation.

Posted by: Marc DeGirolami | Jul 5, 2013 11:26:49 AM

"grandfathered plans, encompassing tens of millions of people"

The religious liberty argument -- unless it's pretextual -- would potentially encompass a lot more than tens of millions, since the religious liberty argument applies to any employer who raises a religious claim against ANY thing that is required to be covered. Again modern psychiatry for religious reasons? Certain types of counseling that might "advance" homosexuality? Something that might interfere with God's plan involving transexual babies? Potential coverage.

"abortifacient contraceptive sterilizing mandate"

The concern repeatedly is about the nature of the exception here. Religious liberty claims are raised, but this is repeatedly the real concern (to be clear, not for everyone). So, this specific thing, including what even many against abortion do not consider abortion (the factual nature of the question was noted by the dissent in the Hobby Lobby suit too) in various cases, is what repeatedly seems to be the real issue. Why don't we honestly say so then?

If Plan B is going to count, again, any number of health related things can raise questions here. Ditto the concern about "sterilization." So, employers, not employees using their own compensation, will decide loads of basic medical decisions. If we are going to be concerned about things, why not this? The net result will be -- I already have seen it here and elsewhere -- some religious beliefs will be demeaned ("what religious liberty? no one has a religious concern about this?!") in favor of others.

Posted by: Joe | Jul 5, 2013 11:40:20 AM

The Administration is delaying the enforcement with the goal of better application in the long term. The desire here is NON-ENFORCEMENT by certain employers. The Administration and the law itself already has done the former in regard to the contraceptive mandate -- an extra year was provided to ease things along.

The Administration is using a similar delay, here more controversially, to better put in place the employment mandate overall. The "compelling interest" in the end is a law that is in presence for the long haul. Moving past the details, the first comment including comments about "poll numbers" (the concern here is health, as the independent health analysis behind the contraceptive mandate showed) is the bottom line of the opposition here. Long term they want it gone. Quite different.

Posted by: Joe | Jul 5, 2013 11:49:37 AM

Joe, that may all be true. But the trouble is in pinning down what makes an interest "compelling." Like it or not (and I understand that many people today really don't like it), RFRA weights the inquiry in favor of the religious claimant. A government interest has to be extremely important to outweigh a substantial burden (assuming such a burden exists) on religious exercise. Delay in the enforcement of a provision for the sake of, as you say, "eas[ing] things along"--that is to say, to accommodate economic and administrative inconvenience--may compromise the extent to which a government interest is seen as truly compelling.

Just as a thought experiment, it may be helpful to imagine that the delay ends up being not one year, but two years, or five, or ten. The greater the delay, the less powerful the claim becomes that the interest at stake is compelling. I grant that we are not yet facing delays of this kind. But it seems to me that the issue of delay--as well as the reasons for delay--can affect the assessment of whether an interest is truly compelling (if only because the standard for determining that question is...flexible).

Posted by: Marc DeGirolami | Jul 5, 2013 12:00:15 PM

If all that might be true, I would like people other than people like me or sean or David to admit that this is not just about "religious liberty," but a specific category that for selective religious motivated reasons is being targeted. Other than one contributor arguing that abortion (which here applies to something the average "pro-life" person might not even think of as abortion) is different -- and even there, he referenced a POLICY move in that direction, not necessarily a 1A line -- this hasn't been done. This has to be considered when weighing the law, no?

If the "economic and administrative inconvenience" concerns were as you hypothesize applied long term, it could be different. So, if, e.g., a facial hair ban applies to religious practice, but for "convenience," a general exception was applied for medical conditions (Judge Alito while on the 3Cir., I believe, flagged something like this), it might be a problem for RFRA reasons.

But, as with abortion/Plan B, now we are stretching the principle so it applies to shorter delays in place with the overall goal of long term success. Delays that were evenhanded in the sense that -- for the "compelling" interest of advancing the overall ends of a law in place to protect health for all in a more equitable fashion while taking into consideration other interests (including 1A), there was a year grace period. Grandfathering is cited on one hand, but on the other, over and over again comments skip over (while I'm sure totally neutral references to "Obama poll numbers" are made) this while criticizing the Administration's alleged lack of respect for religious interests.

Finally, reference is made to "many people" who might not "like" that things are being weighed in favor of the religious claimant. I'm quite concerned for religious claimants. RFRA is not in place however merely for those against the contraceptive mandate. It is in place for everyone's religious liberty. I think the arguments here selectively burden the religious liberty of some. If we are going to selectively focus on delays in place for the purpose of the long term success of a program that advances religious liberty of all, it's problematic.

Posted by: Joe | Jul 5, 2013 12:50:52 PM

Joe, when I said "that may all be true," I meant to assume that the specific statements about the Administration's reasons for delay that you advance in your second comment are true. Nothing more than that.

Posted by: Marc DeGirolami | Jul 5, 2013 1:28:26 PM

"it will depend on a range of atmospheric assessments, and those assessments might relate to what the government does with and how it treats distinct, but related, features of the general statutory scheme"

I think that's right. Compare to O Centro Espirita--nothing like this unfettered bureautic discretion in deciding what the rules are and who must follow them was at work in how the government deals with Schedule I narcotics. Yet a singular, comparatively small exemption, for a different substance than the halucinogenic tea at issue (which itself had no exemptions) gutted the government's assertion of a compelling interest against the RFRA exemption in that case.

That court unanimously (and mockingly) refused to accede to the government's (and some commenters') "slippery-slope concerns that could be invoked in response to any RFRA claim for an exception to a generally applicable law. The Government's argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions." But Obamacare bureaucrats don't even have the internal consistency to say "no exceptions"--they're saying we can and do operate this statute however and whenever we want, statutory language notwithstanding, but we still give no quarter to RFRA claimants.

And it is worth noting that basically the same Supreme Court just declared in Fisher that the government can't rely on deference to satisfy the compelling interest test, particularly in the least restrictive means component.

Posted by: Matt Bowman | Jul 5, 2013 2:14:49 PM

As an interesting aside, the Pittsburgh Archdiocese is suing HHS for allegedly stonewalling its FOIA requests: http://blogs.spjnetwork.org/foi/2013/07/03/pittsburgh-catholic-diocese-sues-feds-for-patently-uncooperative-response-to-foia-request/

Posted by: CLS | Jul 6, 2013 1:53:58 PM