There have been a couple of responses to a series of questions by Justice Alito at oral argument in the Zubik Contraception Cases, where Alito suggests using the exchanges as an alternative to the accommodation, so that the accommodation is not "narrowly tailored."
I agree with Professors Dorf and Lederman that this is wrong, not just factually, but legally. But I think they're making the point in a slightly less straightforward and strong way than I would make the point.
RFRA is, at its heart, like the Dictionary Act. It's a statute that says future statutes should be interpreted in a particular way. And because it is just a baseline way to interpret a statute, it must accede when directly contradicted by the ACA itself.
Thus, something prohibited under the statute can't be an alternative to an accommodation under the ACA. Assuming the interest is compelling, the statute contemplated that it be fulfilled. And the statute could not have contemplated an alternative solution that is inconsistent with its clear text. The details are actually relevant: One possible solution the objectors put forth is that perhaps contraception coverage can be put out on the exchanges.
But the ACA forbids that kind of partial coverage on the exchanges. In any event, employees who get coverage through their employers are not eligible for subsidies on the exchanges, and there are other critical limits in the ACA regarding the extent of subsidies in this kind of unexpected scenario.
Professor Dorf points to Alito's claim that maybe the government can ignore the text of the ACA, so that really the alternative is possible:
JUSTICE ALITO: Couldn't the Executive deal with the problem of what's available on the Exchanges at the present time in this way: Policies are available that provide comprehensive coverage. Could the Executive say, as a matter of our enforcement discretion, we are not going to take any action against insurers who offer contraceptive only policies, and in fact, we are going to subsidize those insurers at 115 percent, just as we do in the situation of the self-insured plans?
But this is a less serious argument. Although Professor Dorf ultimately and correctly finds the argument wanting, he gives it too much credit. It is one thing to say that, in practice, it is possible that the government can allow an unlawful black market for contraception coverage to go on in the marketplace, creating an alternative way to provide effective contraception coverage--and yes, it's about as unlikely to be effective as it sounds. But it's quite another to say that Congress contemplated this in passing the ACA, when its text plainly *forbids* it. And if Congress did not contemplate it, one cannot say that the ACA intended to forbid the kind of accommodation the government put forth here because of its potential existence. Because, at the end of the day, while we are discussing what RFRA means, what we are fundamentally construing is still the ACA itself.
In other words, regardless of the President's powers, it is only Congress' intent that matters. Thus, while commentator Hashim claims that maybe Alito was trying to make the United States give a fatal confession on the immigration cases, it's really two different issues. The Immigration cases relate to the government's ability to formally de-prioritize or even ignore Congress's instructions, while the issue here is whether Congress could have itself intended an outcome it expressly forbade.