Among the most destructive consequences of “cooperative” federalism is its tendency to foster a social structure resembling that of Tunisia or Argentina.
Scenes from an Argument
I’ve perused the argument transcript in Zubik v. Burwell (better known as Little Sisters of the Poor v. Burwell) and some of the press coverage. I’ve also looked at the press pictures and noodled over whose side I’m on—the grim-faced harridans demanding free contraceptives now, or the cheerful Little Sisters.
(They’re not smiling because of the argument, although it gave them reasons. I’ve been around them and they’re always joyful because of some stuff that happened 2,000 years ago, this glorious weekend.)
Even the most sympathetic plaintiffs sometimes deserve to lose. Here, though, I don’t see it. It’s not so much that I disagree with the government’s position; it’s that I can’t comprehend it.
Under the Affordable Care Act health insurance plans have to provide coverage for contraceptives and the like, without co-pays or deductibles. Many religious institutions want no part of that. The Religious Freedom Restoration Act (RFRA), which passed with nary a dissent during the Clinton years but today wouldn’t garner a single Democratic vote, says (in substance) that when government imposes a substantial burden on religion, it must have a “compelling interest” and achieve its objectives by the least restrictive means. The administration has made an exception for churches and some religious orders but not for other religious institutions—like the Little Sisters (a religious order but they transgress the limits by providing care for the elderly poor, regardless of religious affiliation). They don’t have to pay for this stuff; that’s the government’s “accommodation.” But they have to help the government ensure that the services will be covered under their health plans.
What’s there not to understand? A ton.
In the first place, how there can be insurance for something that’s sure to occur or to be consumed? No homeowner’s insurance covers lawn mowing. Under a plan that’s either a pre-payment for future services or else a cross-subsidy—here, for people desiring to contraceive. (Justice Kennedy noted the point.) Why is that compelling?
A few minutes into Paul Clement’s argument for the Little Sisters, Justice Sotomayor wheeled out the artillery. She feels very strongly about this. At one point the Chief Justice inquired whether ACA plans worked in a certain way and while Solicitor General Verrilli was fumbling for an answer Justice Sotomayor erupted, “That is a falsehood.” Geez. Anyhow: we allow Quakers to be conscientious objectors, Justice Sotomayor said. But they have to claim that status knowing full well that the government will make someone else take their place. Why isn’t that the same complicity in sin that’s alleged here?
The reasons came out in the argument. “My clients would love to be a conscientious objector,” Mr. Clement closed his argument on rebuttal. “But the government insists that they be a conscientious collaborator. There is no such thing.” Jackpot. But even if the analogy holds: we ask lots of people to bear lots of things to fight wars. But to provide birth control pills??
It gets yet more mystifying. There’s a million ways to provide “free” contraceptives without dragging religious institutions into the business, like carpet-bombing campuses with condoms. (Petitioners’ counsel proffered more plausible ideas, such as separate, subsidized health insurance plans.) Ergo, that can’t be the government interest. Soon into General Verrilli’s argument, Chief Justice Roberts nailed the point:
Your compelling interest is not that women obtain the contraceptive services. Your compelling interest is that women obtain the contraceptive services through the insurance plan or the third-party administrator hired by the Petitioners, hired by the Little Sisters.
General Verrilli did not dispute that specification of the government’s interest with a single word. Instead, he insisted that “a one-off jerry-rigged separate channel to get contraceptive coverage” wouldn’t be good enough. It’s got to be “seamless.”
Seamless—how? So seamless that the “insured” can’t be asked to carry a second insurance card for all the free stuff? Yes. So seamless that even churches themselves could be put under the obligation? Yes. “But,” General Verrilli assured the Justices, “we have constrained ourselves. We have tried to be especially careful with houses of worship.” So seamless that “grandfathered” health plans—unlike the Little Sisters—are exempt? Well, those are going to die anyhow, by design. Those plans are the ones we were supposedly allowed to keep if we like them. General Verrilli did not lose much by exposing that lie: it’s long been a matter of public record.
None of that is intelligible, and none of it went over very well. So Justice Breyer volunteered an interest of his own:
[Y]ou don’t want to have the women to ask for the coverage because vast numbers of women will, quite a few who have religious objections won’t, and then there will be that middle set of people who are inertia bound. And since they are inertia bound, we can’t say so what, because poor people who don’t object religiously, if they get the contraceptives, that lowers the cost of health coverage later on. [Assumes fact not in evidence but let it go.] … And therefore, there is an interest of some kind in […] not having a system where the inertia bound have to take initiative.
Wow: behavioral economics meets the First Amendment, and RFRA. Again, I don’t get it: is there any scenario in which the government does not have “an interest of some kind” in overcoming people’s “inertia” to make them do what the government wants them to do?
I had to read to the near end of the transcript to hit a point I do understand. All these fabulous comprehensive plans on the Exchanges must be comprehensive. So, Justice Alito inquired,
Could the Executive say, as a matter of our enforcement discretion, we are not going to take any action against insurers who offer contraceptives-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?
Not really, the SG replied. We couldn’t do that and it wouldn’t solve the “inertia” problem. Justice Alito persisted:
But why would it be not something that you could do in accordance with your understanding of executive power?
That’s a fist in the face. The point is tangential, and “your understanding” is the unbounded executive theory the administration has abjured in this case but has relied on and will again rely on in absolutely every other case of consequence. But the point is unlikely to register with an administration that can count on four votes no matter what.
Back to my incomprehension: why have a fight over the First Amendment, or RFRA, over this? We know (a president might reason) there are these religious people who don’t like us. They have good lawyers and they want an issue, and we don’t need that fight so let’s sideline them and cut a deal with the Little Sisters, on the White House lawn. We make transactional deals in matters of faith all the time (like Solyndra and global warming); why not now and for nuns?