Reply to Lederman on “Substantial Burden”—Part 1

by Ed Whelan

Georgetown law professor Marty Lederman has kindly responded at length to my recent post that takes issue with his assessment whether the HHS mandate places on objecting employers a “substantial burden” within the meaning of the federal Religious Freedom Restoration Act. Or, more precisely, he has responded at length to a second-order argument that I made in support of my second, and secondary, point. At the same time, as I will show, he has conceded and abandoned the essential parts of his affirmative argument.

Even the most diligent reader will, I fear, have difficulty navigating the back-and-forth that has occurred. In particular, I don’t think that any reader of Marty’s response would readily discern the two basic points I made. (Marty and I were colleagues a decade ago at the Office of Legal Counsel in the Justice Department. Marty has done the friendly favor of referring to me by my first name, so I will reciprocate.) So I will try to be as clear as possible while also being succinct.

According to Marty, if federal law isn’t placing substantial pressure on employers to provide health insurance, any burden that the HHS mandate places on objecting employers who do provide health insurance is very weak. I offered two points of criticism. First, it’s clear that federal law is placing substantial pressure on employers to provide health insurance. Second, for purposes of the “substantial burden” inquiry, I doubt that it really matters whether an employer’s decision to provide health insurance is responsive to substantial pressure from federal law.

I will address Marty’s response to the first point in this post and to the second in the next.

At the tail end of his response, in the second of what he calls two “less important” points, Marty expressly “agree[s] [with me] that federal law has been largely responsible for the prevalence of employer-provided insurance for lo these many, pre-ACA decades.” (The italics are Marty’s.) As I see it, his concession means that he has no basis for disputing that federal law is clearly placing substantial pressure on Hobby Lobby and other employers to provide health insurance in order to stay competitive in attracting employees.

In the last paragraph of his response, Marty argues that “the new law will make exchange-based insurance a better option for many employees, and in so doing should diminish appreciably that particular, previous source of the employer incentive to offer insurance.” He may well be right that that is what Obamacare will do at some indeterminate point in the future. (That is, contrary to President Obama’s notorious lie that if you like your insurance, you can keep it, Obamacare may well drive employers to dump their employees into the exchanges.) But that future contingency doesn’t remotely negate the substantial pressure that federal law placed on Hobby Lobby and other employers when they had to decide last year, and places on them when they are deciding here and now, whether to continue to provide health insurance.

In sum, I think that Marty’s concession defeats his broader argument that federal law isn’t placing substantial pressure on employers to provide health insurance.