Kelley v. Becerra, the preventive care mandate and the Major Questions Doctrine
For nearly a decade, the courts have heard challenges to the Affordable Care Act contraceptive order. But if you read the bill, there is no actual “preventive mandate”. (There is also no provision called an “individual mandate.”) Rather, the bill requires insurers to make “precautions.” The Court of Auditors has not really defined what ‘precautionary’ means. Rather, this decision was delegated to an agency.
I have long argued that this delegation is suspicious. In 2020 I brought a related position before the Supreme Court Little Sisters of the Poor vs. United States. We argued that the ACA did not delegate authority to create the Obama administration’s first “housing.” Our mission was based on the doctrine of non-delegation and the doctrine of the big questions. Here is an excerpt from the introduction:
In principle, the ACA has not delegated the authority to make this arbitrary distinction and resolve this “important issue”. The fact that rule-making here was not based on health, financial, or work-related criteria, but rather on subjective determinations, in which workers adhere more closely to the religious beliefs of their employers, “confirms the authority claimed by “the agencies.” , goes beyond [their] is professional and not compatible with the statutory purposes and design. Gonzales vs. Oregon, 546 US 243, 267 (2006). If “Congress wished to entrust this matter to any agency, surely it would have done so expressly.” ID.
Had Congress intended to give departments discretion in deciding which religious institutions should be subject to the mandate, it would have enacted legislation to that effect. “It’s particularly unlikely that Congress would have delegated that decision to ‘the agencies’ that ha[ve] no expertise in the manufacture of “religious shelters” of this nature without clear legal guidance. king v Burwell, 135 S.Ct. 2480, 2489 (2015) (cited gonzales, 546US at 266–67). Given the narrow “broadness of authority” that Congress has given to the executive branch on this contentious issue of religious liberty, the court is not “obligated to … yield to the agency’s expansive construction of the statute.” FDA v. Brown & Williamson Tobacco Corp.529 US 120, 160 (2000).
I have discussed the legislative history of the prevention mandate and exceptions on pages 29-66 decrypted. In particular, on pages 43-49 I address the legislative debates underlying the “precautionary” mandate. Here is a snippet:
Had there been discussion that this provision would be used to force employers, including religious non-profit organizations, to adopt contraceptives that can prevent implantation of a fertilized egg, there would have been an uproar. Such a bill was unlikely to have garnered the vote of Senator Nelson and others in the fragile faction of sixty. It is not clear that anyone in the House understood that the change would work in this broad way. Representative Stupak stated that the “[t]he principle of [his the pro-life] Caucus members is their belief that the fertilized embryo is human life and that any man-made disturbance of the embryo is a form of abortion.” 126 FDA-approved contraceptives can have the effect “to prevent implantation of a fertilized egg “. 127 Under no circumstances could the pro-life caucus have endorsed a mandate contrary to their mission statement – even with the Presidential Executive Order having no bearing on the mandate. I could not find a single concurrent statement from Stupak or otherwise Others in the house suggested they recognized that the “preventive care” mandate could be used to compel religious employers to cover such contraceptive methods, which his caucus rejected.
And here I was alluding to what we now call the “Big Questions Doctrine.”
This is the proverbial dog that didn’t bark, a legal principle derived from Sir Arthur Conan Doyle’s classic tale Silver Blaze. 129 In the story, a Scotland Yard officer investigates a late-night robbery of a racehorse. He asks Detective Sherlock Holmes, “Is there anything else you would like my attention to draw?” Holmes replies, “To the strange incident with the dog that night.” The officer is confused. “The dog didn’t do anything during the night.” Holmes concludes, “That was the odd incident… Obviously the midnight visitor was someone the dog knew well.” The dog not barking was the clue. That no one objected to a requirement requiring all employers – with no exceptions for religious groups – to provide contraceptives is in itself a “curious fact”. This issue is even more extreme than the Hyde Amendment debate because it was not about state funding for abortion, but about forcing religious organizations to pay directly for these contraceptives. Amid the debates over individual mandate, abortion funding and the issue of state replacements, this key detail has gone completely unnoticed.
Ultimately, the Supreme Court did not reach the delegation issue Little sisters of the poor. Judge Thomas’ majority opinion noted that the question was waived:
No party has filed a constitutional complaint against the breadth of the delegation involved here. See. gundy v. United States, 588 US ___ (2019). The only question we face today is what the simple wording of the law allows for. And the simple wording of the law clearly allows departments to create the standards for precautionary and religious and moral exceptions.
Now in the wake West Virginia vs. EPAthis question of delegation was revived.
Oral hearings were held yesterday in the Northern District of Texas Kelley vs. Becerra. The case is very complex but clearly presents the problem of delegation. And the plaintiffs are represented by Jonathan Mitchell, the genius.