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Archive for July, 2012

A prior episode in RFRA history suggests why it would be imprudent for federal courts to dismiss the pending RFRA claims against the Obama Administration’s contraceptives mandate without the benefit of oral argument. The long and short of this prior episode is that the need to take a clear litigation position on a RFRA matter brought about one of the quickest reversals of an Administration’s legal position in the last few decades. It happened when the presidency was held by a former constitutional law professor–in the Clinton Administration.

The case was Christians v. Crystal Evangelical Church. The Clinton Administration needed to address how the RFRA, then a relatively new statute of uncertain constitutionality (it was signed early in the Clinton presidency), interacted with a provision of the bankruptcy code authorizing a bankruptcy trustee to claw back transfers made in a period leading up to the declaration of bankruptcy. The issue was posed when a bankruptcy trustee (Christians) successfully clawed back thousands of dollars that had been donated over the course of the prior year to a church (Crystal Evangelical Church). When the decision allowing this clawback was appealed to the Eighth Circuit, the Clinton Administration intervened to take a position on the constitutionality of the RFRA and  the validity of the clawback provision as applied to donations to a church. The Administration filed a brief arguing that the RFRA was constitutional and that the clawback provision was valid as applied, notwithstanding RFRA; donations to the church should be considered just like donations to non-religious charities (which could be clawed back).

The Administration’s position in Crystal Evangelical led to substantial political and legal pushback. Among other things, Senator Orrin Hatch took to the Senate floor and denounced the Administration’s position. Senator Hatch’s position on the RFRA carried great weight, as he was a principal sponsor of the Act (along with Senator Kennedy). Senator Hatch argued that the position in the Clinton Administration’s amicus curiae brief was “contrary to the plain meaning of the act, to the detriment of religious free­dom.” He asserted that, “[d]espite the act’s widespread support and its clearly defined and agreed upon objective, its purpose is being un­dermined by this administration.” Expounding further, Senator Hatch stated:

Perhaps  this is the kind of limited protection President Clinton envisioned when he  committed himself to the protection of one of the most precious of all-Amer­ican liberties—religious freedom—but I can say quite confidently that this is not the type of protection Congress fought so hard and so long to restore. The Department’s position is a slap in  the face to our religious community, and it should not stand. I personally believe that President Clinton must not know what they are doing, or he would put a stop to it. So, in a sense, it is a slap in his face, as well, since he was one of the strongest supporters of what we were trying to do. I hope that he will get involved and direct the Department to back off—especially since there is no fraud here— and allow the Religious Freedom Res­toration Act to have the widespread, broad coverage that we intended here in Congress in the first place.

The Clinton Administration decided to take a closer look at its position. DOJ lawyers sent to the White House to describe the Administration’s position to counsel at the White House found themselves meeting with President Clinton himself. (Seth Waxman recounts this meeting and its significance to his later work as SG in this BYU Law Review article.) Some time later, the responsible DOJ lawyers were told by the White House that the President had decided that the position taken in the brief was wrong and that the brief should be withdrawn. This took place the night before oral argument. The career DOJ lawyer to argue the appeal did not find out until the morning of oral argument.

The posture of the Crystal Evangelical Church case is far different from the contraceptives mandate litigation. But in that current RFRA litigation, like in Crystal Evangelical Church, taking a position in court could prompt a  harder look at the Administration’s position on a legal question. The benefit of bringing the federal government into court for argument is to force anticipation of having to answer questions in open court. And the need to formulate clear answers can stimulate a clarification or even a change of opinion.

Clarification is certainly needed in the contraceptives mandate litigation. In February, the Administration finalized its rule limiting exemption from the contraceptives-without-cost sharing mandate for insurance coverage to a narrow band of religious employers. But the Administration also announced that it would develop an accommodation for non-exempt employers with religious objections. Based on this promised future accommodation (and accompanying one-year safe harbor from government enforcement of the contraceptives mandate against non-exempt employers), the federal government has moved to dismiss several challenges to the mandate.

A federal judge in D.C. last week dismissed Belmont Abbey College’s challenge to the HHS contraceptives mandate on standing and ripeness grounds. On standing, Judge Boasberg held that Belmont Abbey’s injury was speculative because the contraceptives mandate remains a moving target. On ripeness, Judge Boasberg reasoned that the challenged rule was not sufficiently final to render the dispute fit for judicial resolution.

The Becket Fund for Religious Liberty, which is representing Belmont Abbey, filed a motion for reconsideration of that dismissal yesterday. It was not until I read the motion that I realized that Judge Boasberg had dismissed the case without hearing oral argument on the government’s motion to dismiss. I think that was a mistake. Here is the first question that the federal government should be brought into court to answer: Will Belmont Abbey College’s health plans be exempt from the contraceptives mandate, or will they not?

The government’s position has been wonderfully ambiguous on this most critical question. The final regulations adopted in February 2012 continue to divide the world of employers subject to the contraceptives mandate into two categories: exempt and non-exempt. Belmont Abbey College is in the non-exempt category, and it seeks to vindicate statutory and constitutional claims that, if successful, would render it exempt. The government has proposed to “accommodate” non-exempt religious objectors like Belmont Abbey College. Yet these objectors seek what has already been denied them in the final regulations: exemption. In its advanced notice of proposed rulemaking, the federal government has claimed that its proposed accommodation would be effectively like an exemption. But what does that mean, especially when coupled with the final adoption of a regulation that classifies objectors like Belmont Abbey College as “non-exempt”? Yet another question that the government should have to answer in open court.

And there are others. Is the government’s attempt at accommodation based on their recognition that the mandate is a substantial burden on the exercise of religion? Why did the government finalize its exemption if it aims to expand that exemption? Why didn’t the government consider other alternatives before, rather than after, finalizing its exemption? The answers to these and other questions would be helpful to a court deciding the ripeness of non-exempt employers’ claims.

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On May 13, 1992, ACLU National President Nadine Strossen appeared before the House Judiciary Committee, Subcommittee on Civil and Constitutional Rights, to testify in support of the Religious Freedom Restoration Act. (Interestingly, the Obama Administration’s former Domestic Policy Advisor, Melody Barnes, also attended, as assistant counsel to the subcommittee). Strossen’s prepared testimony, now included in the legislative history of the RFRA, includes a litany of examples showing how, “[i]n the aftermath of the Smith decision, it was easy to imagine how religious practices and institutions would have to abandon their beliefs in order to comply with generally applicable, neutral laws.” Among other threats to religious practices and institutions, Strossen observed that “[a]t risk were such familiar practices as . . . permitting religiously sponsored hospitals to decline to provide abortion or contraception services . . . .”

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The unfortunate leaks regarding the Supreme Court’s decisional process in NFIB v. Sebelius share a resemblance with the leaks about the Burger Court that provided the narrative for The Brethren. The exposure of inside information then was driven in large part by frustration with the Chief Justice. That is likely the case now as well, although this Chief Justice’s switch is far different from the kind that created such ill will on the Burger Court.

It is standard lore that Chief Justice Burger occasionally manipulated his Conference vote in order to control an opinion assignment that he did not deserve. Discussing Chief Justice Burger, one unnamed justice reportedly told Bernard Schwartz, “The great thing about Earl Warren was that he was so considerate of all his colleagues. He was so meticulous on assignments. [But] all too damned often the Chief Justice will vote with the majority so as to assign the opinion, and then he ends up in dissent.” (Schwartz, Ascent of Pragmatism, 13-14) As Schwartz’s work and The Brethren also reveal, Burger assigned the opinion to himself in an important school-busing case even though he was in the minority (Swann), and Burger assigned Roe v. Wade to Justice Blackmun even though it was unclear that Burger was in the majority (and therefore unclear whether he had the authority to assign the opinion).

The leaks about NFIB v. Sebelius do not suggest that anything of this sort happened. Rather, Chief Justice Roberts voted sincerely at Conference to hold the individual mandate unconstitutional and, appropriately, assigned the opinion to himself. Then in the course of writing it, he switched.

Perhaps some of the Justices view Chief Justice Roberts’s shift more through the lens of their perception of Chief Justice Rehnquist. If Rehnquist had been part of a majority to hold the mandate invalid (and there is every reason to believe he would have been), it is very unlikely that he would have switched his vote. Yet that is not because he was never suspected of tailoring his vote based on concern about perceptions of the Supreme Court, as may have been the case in Dickerson.

In the end, though, the comparisons are of limited utility. These kinds of decisions are intensely individual. The way to evaluate them is not motivational attribution but assessment of the resulting legal merits.

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The recent revelations about the process of writing the opinions in NFIB v. Sebelius explain much about some otherwise puzzling aspects of the opinions. Many have noted, for example, that the Joint Dissent by Justices Scalia, Kennedy, Thomas, and Alito reads like a patchwork. The switch-induced time pressure under which these Justices jointly produced the opinion may have exacerbated the normal difficulties of assembling all the pieces into a unified whole. And the process may have allowed in arguments whose provenance may have been unknown to all of the authoring Justices.

Something like that may have happened with respect to the Joint Dissent’s reasoning about the alleged inseverability of § 5000A and the Medicaid expansion from the rest of the Act. The Joint Dissent’s analysis relied on Christmas tree imagery to argue for inseverability:

The Court has not previously had occasion to consider severability in the context of an omnibus enactment like the ACA, which includes not only many provisions that are ancillary to its central provisions but also many that are entirely unrelated—hitched on because it was a quick way to get them passed despite opposition, or because their proponents could exact their enactment as the quid pro quo for their needed support. When we are confronted with such a so-called “Christmas tree,” a law to which many nongermane ornaments have been attached, we think the proper rule must be that when the tree no longer exists the ornaments are superfluous. We have no reliable basis for knowing which pieces of the Act would have passed on their own. It is certain that many of them would not have, and it is not a proper function of this Court to guess which.

NFIB v. Sebelius, Scalia, Kennedy, Thomas, & Alito, JJ., dissenting.

Where did the Christmas tree imagery come from? Throughout the litigation, there have been references to the PPACA as a Christmas tree. The bill passed the Senate on Christmas Eve, 2009, and it was criticized for being loaded down with “ornaments” to garner different legislators’ votes. But the insertion of the Christmas tree into severability analysis appears to derive from a January 31, 2012 Politico op-ed authored by Senator Mitch McConnell and Carrie Severino. The op-ed states:

The new health law is what we call a “Christmas tree” bill, decorated with countless provisions before it is passed. For example, the “Louisiana Purchase,” which guaranteed hundreds of millions of dollars in special payments to that state’s Medicaid programs. Or the “Cornhusker Kickback,” which, as originally drafted, would have given special treatment to Nebraska to sway a fence-sitting senator. Those provisions include everything from taxes on tanning salons to slush funds for bike paths as ornaments.

The question that will be facing the court is: What happens to the ornaments if the tree falls?

* * *

All the parties — including the Obama administration — agree that the new insurance regulations are so dependent on the mandate they couldn’t function without it. If the trunk of a tree is severed, then the branches fall with it.

The administration nonetheless now argues that the tree’s “ornaments” somehow remain suspended in midair after the tree is gone.

Senator McConnell was the lead signatory on an amicus brief regarding severability that included Ms. Severino as counsel. But that brief did not mention a Christmas tree. Nor, as far as I can tell, did any of the other briefs in NFIB v. Sebelius filed in support of total inseverability.

It may be that whichever Justice authored this portion of the Joint Dissent came up with the Christmas tree image on his own. Or there may be some other source in the litigation that it came from. But it would be interesting if its usage derived in some way from the McConnell/Severino op-ed. For if that’s where it came from, and if all the authoring Justices knew that, it would be surprising that it stayed in the opinion. There are many other ways that they could have made the same point.

Suppose that the opinion had garnered just one more vote. And suppose that the instrument of destruction for all the provisions whose constitutionality has not been questioned had been imagery supplied by the Senate Minority Leader and the Chief Counsel and Policy Director of the Judicial Crisis Network–imagery supplied not in a brief, but rather in an Internet-only op-ed aimed at D.C.’s political and legal elites, imagery that picks up on a talking point tied to the political maneuvering that led to the Act’s Senate passage on Christmas Eve. It’s not hard to predict what sorts of criticisms would have rained down on this part of the opinion.

It very well may be that the imagery did not derive directly from the McConnell/Severino op-ed. Another possibility is that the Christmas tree imagery was just “in the air” in D.C. over the past couple of years. There was no particular source for its usage in the Joint Dissent, but rather it was just part of the available imagery given the season of judicial review of the the PPACA. Perhaps the composing Justice just adopted what was ready at hand. If that’s what happened, the close connection with the McConnell/Severino op-ed suggests a reason for circumspection in one’s choice of imagery. For with respect to the PPACA, the Christmas tree imagery had a political tint given the timing and circumstances of its passage in the Senate on Christmas Eve 2009. That coloring suggests a reason to reach out for some other imagery even though legislatures regularly pass so-called Christmas tree bills, bills which may be appropriately so called even when they are not passed around Christmas time.

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