Notice & Comment

The Supreme Court Majority Seemingly Invites a Nondelegation Challenge to the ACA’s Contraceptive Mandate, by James C. Phillips

In today’s opinion in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (No. 19-431), consolidated with a related case, the U.S. Supreme Court upheld regulations exempting employers from the contraceptive mandate at issue in Hobby Lobby. In short, a 7-2 majority (Justices Kagan and Breyer only concurred in the judgment) held that the regulations were not procedurally defective under the APA and that the regulations were authorized by RFRA.

The majority saved for another day whether RFRA required the regulations, something Justice Alito argued in his concurrence, joined by Justice Gorsuch. Thus, the victory for the Little Sisters could be short lived. As Justice Kagan noted in her concurrence, upon remand to the lower courts, the States arbitrary and capricious challenge could defeat the regulations. And a new administration could also rescind them. So the seven-year saga is not yet over.

Which brings me to a small portion of Justice Thomas’s majority opinion. On pages 15-16, he repeatedly lays out the case for why the ACA lacked an intelligible principle in delegating to a sub-agency (HRSA) what is was that health plans had to cover:

  • the provision grants sweeping authority to HRSA to craft a set of standards defining the preventive care that applicable health plans must cover. (Slip op. at 15)
  • the statute is completely silent as to what those “comprehensive guidelines” must contain, or how HRSA must go about creating them. (15)
  • The statute does not, as Congress has done in other statutes, provide an exhaustive or illustrative list of the preventive care and screenings that must be included. (15)
  • It does not, as Congress did elsewhere in the same section of the ACA, set forth any criteria or standards to guide HRSA’s selections. (15)
  • It does not, as Congress has done in other contexts, require that HRSA consult with or refrain from consulting with any party in the formulation of the Guidelines. (15)
  • This means that HRSA has virtually unbridled discretion to decide what counts as preventive care and screenings. (15)
  • the . . . capacious grant of authority that empowers HRSA to make these determinations . . . (16)
  • Congress could have limited HRSA’s discretion in any number of ways, but it chose not to do so. (16)
  • Instead, it enacted expansive language offering no indication whatever that the statute limits what HRSA can designate as preventive care and screenings or who must provide that coverage. (16)
  • By its terms, the ACA leaves the Guidelines’ content to the exclusive discretion of HRSA. (16)

On this issue, the opinion then concludes: “No party has pressed a constitutional challenge to the breadth of the delegation involved here. Cf. Gundy v. United States, 588 U. S. ___ (2019).” So the majority doesn’t address it. (To be fair, some amici did raise the issue. See here and here.) Here’s betting someone will raise a nondelegation challenge soon.

James C. Phillips will be joining the faculty of the Dale E. Fowler School of Law at Chapman University this fall.

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