Symposium: Administrative law lessons from King v. Burwell

Erin Morrow Hawley is Associate Professor of Law and the University of Missouri School of Law.  She filed an amicus brief on behalf of the Independent Women’s Forum in support of the petitioners in Little Sisters of the Poor Home for the Aged v. Burwell.

After the Supreme Court’s decision in King v. Burwell, serious questions regarding the contraceptive mandate of the Affordable Care Act (ACA) exist, not only under the Religious Freedom and Restoration Act (RFRA) and the First Amendment, but also under principles of administrative law. Does the Health Resources and Services Administration (HRSA) receive any deference with respect to its “exemption” for “religious employers” – an exemption that treats religious employers differently based on internal church structure? There are several reasons to think the answer is no.

First, this case involves issues of unquestionable significance. The Court has suggested that, when questions such as religion and moral philosophy are involved, courts should be particularly wary of finding an implicit delegation from Congress. This would be especially true here, when the agency has no particular religious accommodation expertise.

Second, the legislative delegation at issue here is even more tenuous than usual. Congress delegated to HRSA the authority to define preventative services. It did not delegate to HRSA, or any other agency, the authority to determine which religious organizations must comply. This makes sense as another statute – RFRA – is directly on point and provides broad religious protections. RFRA is a statute of general applicability; it is not committed to administration by HRSA, and thus the agency should receive no deference for its “exceptions.”

Third, there are serious First Amendment questions as to whether Congress itself could pick and choose among religious groups in the way that HRSA has. In light of these questions, there is a good argument that HRSA has erred in construing the ACA so as to raise serious constitutional doubts.

Ultimately, the Court’s decision in King v. Burwell may have more to say about administrative law than health care law. This case is the first test.

In King v. Burwell, the Court was clear that courts, not agencies, have the primary role in interpreting statutes — at least important ones. Chevron deference was premised on the theory that a statutory ambiguity constitutes “an implicit delegation from Congress to the agency to fill in the statutory gaps.” But in “extraordinary cases,” the Court was obliged to “hesitate” before concluding that Congress intended an implicit delegation.

The issues in King were significant, involving billions of dollars and affecting health insurance for millions of people. As a result, the Court was confident that if Congress had wanted to assign such significant questions to the Internal Revenue Service, “it surely would have done so expressly.” The Court found such a delegation even more unlikely because the IRS had no expertise in health care policy. As a result, the Court refused to defer to the Internal Revenue Service’s interpretation of the ACA.

What King meant by all of this will be put to the test precisely because the issues involved in this case undoubtedly raise questions of “economic and political significance.” No one disputes that issues of moral conscience and religious governance are significant under the First Amendment. Indeed, in Burwell v. Hobby Lobby Stores, the Court wrote that the precise issues involved here present “difficult and important question[s] of religion and moral philosophy.”

And at least according to one Justice, this significance may have constitutional consequences. During the oral argument in Hobby Lobby, Justice Anthony Kennedy raised the following question:

Now, what — 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? I recognize delegation of powers rules are somewhat moribund insofar as their enforcement in this Court. 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?

The Justice’s background concerns over the scope of the Fourth Branch may play out in several ways.

First, as in King, the Court may find that there has been no delegation of religious accommodation under the ACA because Congress did not delegate expressly. Chevron itself involved a “specific provision” and “a legislative delegation to [the agency] on a particular question.” Given the significant questions of religious conscience involved, Congress arguably would have delegated expressly had it wanted HRSA to receive deference on the question of which religious groups should comply with the mandate.

Yet, the delegation here is even more tenuous than the delegation in King. The ACA requires certain employers to provide insurance to women covering “preventive care and screenings” without cost-sharing requirements. Instead of defining the term “preventive care and screenings,” Congress authorized HSRA, a component of the Department of Health and Human Services (HHS), to determine what types of care must be covered. That authorization said nothing about religion. (This is entirely as one would expect given that Congress already had addressed religious accommodation under RFRA.) Instead, HHS issued its own regulation, purporting to authorize its own agency, HRSA, to “establish an exemption” from the contraceptive mandate for “religious employers.”

Exercising authority under this double delegation, HRSA exempted churches and their “integrated auxiliaries” from the contraceptive mandate. Religious non-profit ministries, religious hospitals, and religious universities, on the other hand, were required to comply with the mandate. The reason given by HRSA for this distinction was the agency’s guess as to how closely religious non-profits might follow established church doctrine: churches and integrated auxiliaries “are more likely than other employers to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan.”

In short, given the lack of anything approaching a “specific provision” delegating to HRSA religious-accommodation authority, the Court may “hesitate” before concluding that Congress intended such a delegation. And again as in King, this is especially true because HRSA has no particular “expertise” in religious accommodation.

Indeed, the question of religious exceptions to statutes like the ACA is governed by RFRA. HRSA does not administer RFRA, let alone have the authority to administer the statute by promulgating rules having the force of law. To get any deference under Mead and its progeny, the agency has to administer the statute in question. Just as no agency gets deference on the meaning of the Administrative Procedure Act (APA), and the Environmental Protection Agency doesn’t get deference on the meaning of the tax code, HRSA should get no deference on the meaning of RFRA. It may be that RFRA (like the APA) is a judicially administered statute, but in all events, it is clear that HRSA does not administer the statute. Further, while the King Court seemed to breathe new life into the major questions doctrine, the idea that courts should interpret statutes to require specific delegations for significant questions is nothing new. Several of the Court’s cases suggest that the Court will scrutinize delegations more closely for significant questions. In FDA v. Brown & Williamson in particular, the Court concluded that Congress had not delegated authority over tobacco to the FDA. This holding turned upon “the nature of the question presented.” The Court relied on an essay written by then-Judge Stephen Breyer urging courts to distinguish between “major questions,” on which Congress is likely to have focused, and “interstitial matters.” Based on this distinction, the Court was “confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.”

Brown & Williamson is similar to the present case in another way, too. In that case, the Court found it important that Congress had passed other statutes regulating tobacco – this legislation indicated that Congress had not intended to grant the Food and Drug Administration jurisdiction over tobacco. So too here. Congress has granted religious accommodation pursuant to a separate statute. Given RFRA, a statute of general applicability, there is good reason to think that the Court will refuse to defer to HRSA’s religious exemption regulations..

Second, the Court may find that constitutional avoidance principles require a more specific delegation in order for HRSA to receive deference. There are serious questions as to whether Congress could make deliberate distinctions among religious organizations based on the business form such a religious entity takes. Yet, under the exemption, a non-profit ministry may be penalized for engaging in precisely the same religious exercise as an exempt “integrated auxiliary.” It is not clear that HHS’s explanation – that employees of integrated auxiliaries are more likely to be religious adherents – holds up. The government itself has argued in briefing that allowing exemptions for houses of worship but denying equal privileges to other independent religious organizations would create “serious” constitutional problems, as in Spencer v. World Vision.

Thus, even if it were permissible for Congress to distinguish between religious entities, it is doubtful that HRSA may do so. When an administrative interpretation invokes “the outer limits of Congress’ power,” the Court expects “a clear indication that Congress intended the result,” as in SWANCC. This requirement stems from a two-fold concern: First, the Court’s “prudential desire not to needlessly reach constitutional issues.” Second, the Court’s “assumption that Congress does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority.” That “serious” constitutional questions are involved is another reason to expect “a clear indication” if Congress intended to delegate questions of religion to HRSA.

In conclusion, King v. Burwell may best be categorized as an administrative law case. If so, administrative law will likely have something to say about the outcome of this case, too.