The blog in a nutshell

The blog in a nutshell
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Friday, March 25, 2016

RFRA Can't Require the ACA to Change


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.





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. 

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.  


6 comments:

  1. IF the court deadlocks, could or would they also issue an injunction against the courts which upheld the Government's position?

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    Replies
    1. If the Court deadlocks they will affirm the decisions without opinion; in these cases, the courts that upheld the Government's position will be upheld.

      Assuming the same result in the 8th Circuit case that is technically not part of these cases (or assuming they deny cert in that case), the 8th Circuit opinion is the law of that Circuit. What that means for the public is unclear, at least to me, as I discuss in this post:

      http://dubitanteblog.blogspot.com/2016/03/so-what-if-it-is-4-4.html

      Delete
  2. Your premise is fatally flawed. Another portion of RFRA says, "Federal statutory law adopted after November 16, 1993, is subject to this chapter unless such law explicitly excludes such application by reference to this chapter." Note the word "explicitly". Because of this word, there is no "direct contradiction" by the ACA and courts must interpret the law in light of BOTH statutes unless doing so leads to an absurdity; using enforcement discretion alleviates the possibility of an absurdity.

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    Replies
    1. That doesn't mean the RFRA trumps the text of the ACA any more than the Dictionary Act does. To the extent the ACA and RFRA are inconsistent, RFRA must yield. Thus, to the extent that RFRA requires an accommodation inconsistent with the ACA, it must yield. Requiring such an accommodation would, in fact, be an inconsistency.

      That doesn't mean that RFRA is irrelevant to the analysis - if you are the same unknown that regularly trolls my blog, you keep thinking my little nuggets are designed to prove to some broader point than they are intended. It just means that you can't claim that something is not narrowly tailored because of the possibility of that alternative, illegal accommodation.

      Delete
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