Bench Memos

Hobby Lobby—Separation of Powers

At oral argument in Hobby Lobby, Justice Kennedy posed an important rhetorical question concerning how separation-of-powers principles bear on the compelling-interest inquiry under RFRA:

What kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined?… But when we have a First Amendment issue of this consequence, shouldn’t we indicate that it’s for the Congress, not the agency to determine that this corporation gets the exemption on that one, and not even for RFRA purposes, for other purposes?

When Congress enacted Obamacare, it didn’t say a word about contraception. It merely said that non-grandfathered insurance plans should cover “preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration….” HRSA, a sub-agency of HHS, delegated this task to an outside body, the Institute of Medicine. The IOM issued a report recommending that the preventive services regulation include, among other things, all FDA-approved contraceptives, including those that can kill an embryo. This occurred outside the rigors of notice-and-comment rulemaking and was guided by a select group of “experts” that included many voices from the pro-abortion lobby. IOM released its report in July 2011, well after many employers, including Hobby Lobby and Conestoga, had already given up their grandfathered health plans. 

Within days of the IOM report, HHS issued an interim final rule mandating insurance coverage for all the items recommended in the report. Only after the interim rule was issued did HHS choose to begin the process of notice-and-comment rulemaking. 

HHS provided a narrow exemption for houses of worship. In response to an intense political outcry, it initiated another rulemaking that offered an “accommodation” for religious non-profits.  That rulemaking was accompanied by a series of shifting “safe harbor” provisions and multiple delays, a familiar refrain for those of us watching the incompetent Obamacare rollout. Several senators chronicled this pattern of executive lawlessness in an amicus brief.

The end result was a system that provides exemptions for churches, an inadequate accommodation for non-profit religious organizations, and nothing at all for for-profit employers like Hobby Lobby and Conestoga. HHS claimed the power to make a religious exemption, but a narrow religious exemption of its own choosing—not a broad religious exemption designed to comport with the Religious Freedom Restoration Act enacted by Congress. That’s a deeply troubling result not only for those who care about religious freedom, but for those who care about our constitutional separation of powers. 

The Solicitor General began his argument with a quote from Justice Jackson’s opinion in Prince v. Massachusetts. Perhaps the Obama administration would have been wise to remember Jackson’s warning from the Steel Seizure cases:

When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

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