Monday, December 02, 2013

Did the Affordable Care Act Partially Repeal the Religious Freedom Restoration Act?

By Mike Dorf

Last week the SCOTUS granted cert in Sebelius v. Hobby Lobby and two related cases, which together raise the question of whether the Dep't of Health and Human Services (HHS) regulations implementing the Affordable Care Act--which exempt many religiously-scrupled employers from the obligation to provide their employees with health insurance plans that include contraceptive coverage but do not exempt large for-profit corporations--are invalid as applied to a closely-held for-profit corporation that is owned by persons with religious objections to providing contraception (because, in the lead case, some forms of contraception act as abortifacients).

The case does not present a constitutional question. Under Employment Division v. Smith, the government's failure to provide religious exemptions from a general law does not give rise to a Free Exercise claim.  Instead, the claimants argue that the Religious Freedom Restoration Act (RFRA) requires exemptions. Readers may recall that the Supreme Court held RFRA unconstitutional as a limit on state and local governments in City of Boerne v. Flores (because it exceeded Congress's power to enforce the Fourteenth Amendment) but the Court has since applied RFRA to the federal government (because, as applied to the federal government, RFRA is not an exercise of the power to enforce the Fourteenth Amendment; it is simply a way of withholding the exercise of power that Congress would otherwise exercise were it not giving religious exemptions).

RFRA as applied to the federal government--sometimes denoted RFRAF and cheekily pronounced "riff-raff"--acts as a wholesale rule of construction: For statutes that were on the books already when RFRA was enacted, RFRAF should be understood as a shortcut version of going through each of those statutes and adding the RFRA religious exceptions. And for statutes enacted post-RFRA--like the ACA--RFRA sets out a background rule against which Congress legislates.  It thus works much like the Dictionary Act, which defines terms for the entire U.S. Code, including statutes enacted before and after the Dictionary Act.

Yet for laws enacted later than the rule of construction, blanket amendments like RFRAF and the Dictionary Act point us to a puzzle: A legislature at time T1 cannot, through ordinary legislation, bind the same legislature at time T2, so how was Congress in RFRAF or the Dictionary Act able to impose limits on later legislation? The short answer, as hinted above, is that it wasn't. When the T2 Congress enacts a new law--like the ACA--it is presumed to be aware of the prior rules of construction--like those in RFRAF and the Dictionary Act--and so when courts construe the later law, they understand the T2 Congress to have taken advantage of the T1 definitions.

But what if the later-in-time law appears to reject the rules of construction set forth in the earlier law? The Dictionary Act expressly states that its rules of construction are only presumptive; they apply "unless the context indicates otherwise." So, to give an example that may figure crucially in the Hobby Lobby case, according to the Dictionary Act, the term "person" presumptively includes corporations. However, if it makes no real sense to apply some law to a corporation notwithstanding the law's use of the word "person," then in context that law doesn't apply to corporations. An example would be a law requiring a "person" to purchase health insurance, since corporations don't need and can't use health insurance (although of course they need and use other kinds of insurance and can purchase health insurance for their employees and officers). Another example might be the core provision of RFRA itself--which limits the federal government's power to "substantially burden a person's free exercise of religion." Notwithstanding the fact that some religious organizations take the corporate form, we might think that Congress only imagined that natural persons can engage in the "free exercise of religion."

Even if "person" in RFRA is construed to exclude corporations, the claimants in Hobby Lobby can still win the case, because they can say that by requiring closely held corporations to provide health insurance including contraceptive coverage for employees, the ACA burdens the free exercise rights of religiously scrupled owners.  According to this argument, the ACA makes people like Hobby Lobby's owners choose between honoring their religious commitments and using the corporate form to operate a business, and that choice substantially burdens their free exercise of religion.

Is that a good argument? Maybe, maybe not.  But I want to bracket the merits of Hobby Lobby for now, to focus on the T1/T2 question.

I noted above that the Dictionary Act contains an express statement that its definitions are only presumptive. RFRA does too but it states the presumption more strongly, as follows: "Federal statutory law adopted after [RFRA] is subject to this chapter unless such law explciitly excludes such application by reference to this chapter." That very strong presumption--requiring something like magic words for a later Congress to disavow RFRA--strikes me as violating the T1/T2 principle. Because the T1 Congress cannot bind the T2 Congress--indeed, because the T1 Congress cannot even enact laws that make it more difficult for the T2 Congress to repeal those laws--we should not understand RFRA as imposing limits on subsequent acts of Congress. Instead, we should understand RFRA as helping later Congresses to express their will: Rather than having to write "subject to religious exemptions" in every statute, RFRA establishes a rule of construction. However, if a later act of Congress is incompatible with the RFRA exemptions regime--even if it does not expressly disavow RFRA--then RFRA doesn't apply to it.

An obvious example would be if the later-in-time law expressly disclaimed RFRA, as contemplated by RFRA itself.  E.g., "in construing or applying this law, the provisions of RFRA shall be disregarded." But notwithstanding RFRA's attempt to require magic words, Congress could also disclaim RFRA implicitly. One way of doing that would be if a post-RFRA law contained a specific list of religious exemptions. Then, it would be fairly clear that Congress intended those exemptions--rather than the general principle by which exemptions are recognized under RFRA--to govern, at least absent a statement in the law to the effect that the listed exemptions are not meant to be exhaustive. We might read the absence of specific language disclaiming RFRA as indicating that the specific list is just meant to be illustrative, but we might not. Again, the crucial question would be what light RFRA sheds on the meaning of the words enacted by the T2 Congress: The T1 Congress that enacted RFRA doesn't get to bind later Congresses to use magic words.

The Hobby Lobby case presents a variant on the scenario I have just described. As implemented, the ACA does contain listed religious exemptions, and large for-profit corporate employers are conspicuously absent from the list. But the list of religious exemptions is not contained in the ACA itself; it is found in regulations issued by HHS.

It's conceivable that in delegating ACA implementation authority to HHS, the Congress that enacted the ACA also delegated authority to HHS to supersede RFRA.  For an example of this sort of delegation to an agency to enact regs that supersede a previously enacted statute, consider the supersession clause (part b) of the Rules Enabling Act (REA).  But the REA's supersession clause expressly delegates to the Supreme Court (acting as an administrative body in supervision of the Rules Advisory Committee) the power to adopt rules that displace prior statutes, whereas the ACA only delegates general rulemaking power to HHS. It does not expressly delegate authority to address religious exemptions in a way that supersedes RFRA. To be sure, it is possible that a T2 statutory delegation to an agency could implicitly confer the power to enact rules that supersede T1 rules of construction, but I am aware of nothing in the ACA that has that implicit effect.

Accordingly, the answer to the question that titles this post--Did the ACA partially repeal RFRA?--is no. Congress could have partially repealed RFRA in the ACA. Congress also could have delegated to HHS (or some other agency) the power to partially repeal RFRA. But it appears to have done neither, and so the Supreme Court will need to construe RFRA in Hobby Lobby.

NB: The foregoing is an updated version of the original post, amended in response to a helpful comment.