Friday, October 11, 2013
NBC News reports that a "big development" in yesterday's Obama-House GOP meeting was that President Obama "opened the door to giving Republicans a concession to reopen the government--with the understanding that the concession would be something the GOP would have ALREADY GOTTEN during normal budget talks (maybe like repeal of the medical device tax)." (emphasis in original)
Another proposal for the negotiators to consider is giving a concession that accomplishes through legislation what would otherwise be accomplished through litigation.
The particular proposal I have in mind would be to expand the religious employer exemption from the contraceptives mandate to employers who participate in church plans. The legal rationales for such a proposal have already been laid out in comments filed by the Church Alliance this past April in response to the Notice of Proposed Rulemaking. To those comments, I would add the observation that the strength of the legal claims in Little Sisters of the Poor v. Sebelius provides another reason to consider such an exemption. If church plans and plan members are going to prevail anyway, but only after some (deserved) embarrassment to the Administration, it would be better to get something for it now instead.
A church plan exemption would not put an end to all of the litigation, by any means, and it is less (in my view) than RFRA already requires. But it would be a visible "get" for GOP negotiators and a costless "give" for the Administration (at least insofar as the interest groups who would be upset by the "give" recognize that the likelihood of the Administration actually prevailing in the Little Sisters case is rather low).