It is modern liberalism, not classical liberalism, that blurs the distinction between the state and society, and that destroys ordered liberty.
In another sign of what is becoming a kind of New Federalism, certain blue states and two federal district courts have joined together to resist the Trump administration’s newly promulgated Religious and Moral Exemptions to the Affordable Care Act’s contraceptive mandate, and, thereby, alter the relationship of the states to the national government, the doctrine of standing in federal lawsuits, and the status of injunctions as “extraordinary” judicial remedies.
On November 18, 2018, the Departments of Treasury, Labor, and HHS jointly promulgated final rules entitled “Religious and Moral Exemption.” In May 2017, President Trump had signed an executive order requiring those departments “to consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive care mandate.” The Religious Exemption was the latest revision of regulations originally promulgated by the Obama administration in 2011 and which had been the subject of the Hobby Lobby (2014), Wheaton College (2014), and Zubik (2016) Supreme Court cases, in all of which the Court had recognized some form of a religious exemption. The Moral Exemption was new and a public act unprecedented perhaps since James Madison introduced his initial version of the First Amendment which protected against the infringement of “the full and equal rights of conscience.” Now, in separate anticipatory lawsuits filed to prevent the final rules from going into effect, a California federal district judge and a Pennsylvania federal district judge issued decisions last month suspending and enjoining those rules.
Two months after the passage in March 2010 of the Affordable Care Act (ACA) (Obamacare), the same three federal departments had issued “the contraceptive mandate” which required private insurance companies to provide contraception free of charge to women. The departments ignored the requirements of rule-making under the Administrative Procedures Act (APA), labeling the Mandate something of an emergency in “the public interest.”
In the California district court case, thirteen states, all blue, have sued, and in the Pennsylvania case, two states, Pennsylvania and New Jersey. Their contentions are the same. Neither case includes private plaintiffs who are alleging harm under either of the two Exemptions. Both the California and the Pennsylvania plaintiff states allege that the final rules violate the Administrative Procedures Act (APA), the Equal Protection Clause, and the Establishment Clause. That is, along with their other contentions, the states are alleging that the Trump administration is attempting, inter alia, to establish religion!
The Trump administration is defending by asserting that the Religious Exemption is not only allowed but is required by the Religious Freedom Restoration Act (RFRA) of 1993, which was enacted to overturn the Supreme Court’s Oregon v. Smith decision in which the Court ruled that Oregon’s criminal drug laws could be sustained against a challenge by some Native American who used mescaline in their religious rituals. (Yes, that’s when Oregon was not yet Oregon.). The RFRA currently requires that when federal laws and rules of general applicability place a “substantial burdens” on a person’s free exercise of religion, the government must employ the “least restrictive means” to achieve a compelling government interest.
Judicial “Special Solicitude” Towards the States
Both district judges allowed the states to sue based on the decision of the Supreme Court in Massachusetts v. EPA (2007), a 5-4 groundbreaking decision in which the Court allowed the state of Massachusetts to sue the Environmental Protection Agency for its alleged failure to regulate greenhouse gases. Massachusetts, along with private litigants, alleged that climate change and global warming affected it particularly in that a “great deal” of its territory, and hence its “quasi sovereignty,” was affected by both global warming and climate change. In his decision for the majority of five justices, Justice Stevens, although recognizing that “States are not normal litigants for the purposes of invoking federal jurisdiction,” went on to invent a new jurisprudential doctrine to the effect that the federal courts may exercise a “special” constitutional “solicitude” on behalf of the states. He said that Massachusetts had an interest “in protecting its quasi-sovereign interests.”
The significance of the case for constitutional federalism is illustrated by Chief Justice Roberts’ vigorous opinion for the four dissenting justices. Roberts pointed out that the majority could muster no support or case law for its “novel” holding that states had “special solicitude” in the Supreme Court. He reviewed the standing of states in federal courts. In Massachusetts v. Mellon (1923), the famous case in which the Supreme Court rejected the concept of “taxpayer standing,” the Court had ruled that states may not represent the interests, as parens patriae, of their individual citizens against the federal government. Such interests are aspects of national citizenship, not state citizenship. As Roberts pointed out, in such cases, quoting Massachusetts v. Mellon, “it is the United States, and not the State, that represents them.” Individuals, not states as surrogates, must themselves sue. In general, after both Massachusetts cases, states may sue the federal government, in their sovereign or quasi-sovereign capacities, in order to protect the functioning and enforceability of their own laws and state programs.
In the style and language of a legislator, Justice Stevens actually discussed the issue of and evidence for global warming and expressed his approval of the necessity to do something about it. Justice Kennedy was in the majority, and this is one of the areas of the law where the question will arise about the possible difference that Justice Kavanaugh will make.
Neither the California nor the Pennsylvania court discussed the plaintiff states’ free exercise or establishment clauses. And both courts found that the Administrative Procedures Act did not allow the two Exemptions, although neither bothered to pay much attention to the difference between the original Obama and the Trump-revised Religious Exemption.
“Extraordinary” Judicial Acts
The most important part of both decisions concerned the two courts’ conclusion that the supposedly “extraordinary remedy” of an injunction, nationwide in the Pennsylvania case, should issue in each case. Both district courts accepted the contentions of the plaintiff states that they would suffer “irreparable harm,” the most important standard for the issuance of an injunction, if the court did not enjoin the new rules. The state of Pennsylvania argued that its “fiscal integrity” would be irreparably harmed because women who had been denied access to contraception under the ACA would seek contraception from state and locally funded programs. Pennsylvania estimated that 74,000 women would lose contraception coverage. Those women would presumably be employees—again, such women are not individual plaintiffs alleging harm in either district court case—of in businesses or of religious organizations. The court did not inquire into how Pennsylvania got the total of 74,000 women who would cause “irreparable” damage to the public finances of Pennsylvania, which has a population of almost 13 million.
Pennsylvania is also contending that it is acting to protect the “safety and well-being” of its citizens. For, without free access to contraceptives in their private insurance plans, women will suffer “unintended” and “irreversible” pregnancies. The contention of the California states is similar. The states will suffer “economic harm” if women lose employer subsidized contraception care. Women will turn to state programs, of which California has its own family planning program. The California court cited HHS’ own statistics that the new rule would cause lost coverage to 126,400 women nationwide, thus, showing that the Pennsylvania court’s estimate of 74,000 for the state of Pennsylvania alone was wildly inaccurate.
What Can States Not Do These Days?
These two recent and essentially identical federal district-court decisions have both raised and focused attention on what during the Trump years is becoming a change in the definition of the judicial power under the Constitution, at least in the lower federal courts.
First, we are fast abandoning the fundamental jurisprudence of our law that legislatures make general rules and courts apply them to specific circumstances when a dispute arises. Compared to the laboriousness, the negotiations, and the compromises involving group—that is, legislative—decision-making and the drawn-out notice and public-comment procedures of administrative law, judicial decisions are supremely efficient. They do resolve “cases and controversies” all at once. It is hard to imagine a more complicated legislative and political issue than climate change. But that did not deter Justice Stevens, as noted above, from giving his opinions about the need for the Supreme Court to act on the subject in Massachusetts v. EPA. Likewise, in the California district court case considered herein, the judge, in issuing the injunction, spoke not only of the “equities” but also of the “public interest analyses” demonstrating the “dire public health and fiscal consequences” in the states. In the Trump era, injunctions, including nationwide injunctions, against federal laws and regulations have become regular, not “extraordinary.” When words like “extraordinary” and “irreparable” are drained of their meaning, one-person edicts by federal district court judges can become partisan and ideological, not legal or constitutional. And such arbitrary judicial power can even be comical: the extravagant notion that the economy of the state of Pennsylvania will be “irreparably” harmed by the birth of a few thousand children!
Second, these are cases in which the suing states themselves, not on behalf of some of their women citizens, are transparently and obviously opposing the principles of religious liberty and moral consciences as a matter of policy. Neither case has private women plaintiffs who are persons alleging personal harm on account of the two exemptions. And such plaintiffs are unlikely. Since 2011, the only aggrieved plaintiffs on the issue of religious exemptions to the contraceptive mandate have been the aggrieved institutions in the Hobby Lobby, Wheaton College, and Zubik (incl. the Little Sisters of the Poor) cases that have been victims of attempted federal coercion to require them to offer contraception. Those institutions did not offer contraception, so there were no women employees denied access to contraception.
Third, if the suing states in the California and Pennsylvania cases have standing to challenge federal administrative rules based on extravagant claims that they are protecting their economies from impregnated women, then it has to be wondered whether there are any prohibitions on what federal laws or programs the states may challenge. As for state economies, every federal program and law affects the economies of every state every day. The Massachusetts v. Mellon case and Chief Justice Roberts’ dissent in Massachusetts v. EPA stand for the principle that there is federal citizenship quite apart from the standing of states to defend true federalism. If it were not so, soldiers could not be drafted in time of war.
Fourth, the fifteen states involved in the two suits have declared that pregnancy is a major public-policy concern of state governments. They have sued in an attempt to guarantee women access to contraception. The California states have expressed their concern that “unintended pregnancies which would impose significant costs on the states.” That is, those states have declared that there is a public interest in and that they are counting the number of pregnancies in their states. The next step might be for them to require certain women, those on welfare, for instance, to use contraception.
Fifth, the two district court cases discussed herein are representative of a kind of New Federalism. The two cases go along with the acts of several states, especially California, that have established themselves to varying degrees as “sanctuaries” against the heretofore unchallenged constitutional doctrine that immigration is a federal responsibility and in active opposition to federal enforcement of criminal immigration statutes. In Trump v. Hawaii (2018), the case in which the Supreme Court upheld President Trump’s “travel ban,” the states suing below had alleged that the travel ban was damaging admissions to their state colleges! Likewise, the spread of state legalization of “recreational” marijuana production and use has been accomplished by just ignoring federal criminal laws about marijuana. And, as was inevitable, that has led to the widespread acceptance, much of it informal for now, of the decriminalization of other drugs, as demonstrated by the coming referendum in Denver about legalizing psychedelic mushrooms.
In closing, it must be admitted that the fundamental principle of federalism involved in any New Federalism must give pause to those like this writer dedicated to that principle. A rebirth of federalism? And it was partly Massachusetts v. EPA that allowed the Fifth Circuit to hold in Texas v. US in 2015 that the Obama administration’s DAPA program, the extension of the DACA (“dreamers”) program, was unconstitutional, although the state of Texas did allege in its suit that DAPA was going to require it to change state laws. Likewise, standing for the new suit by California and other states against President Trump’s national-emergency decree is entirely based on this New Federalism. And as for the decriminalization of drugs by the states, several conservative and libertarian organizations are in the forefront of that ever-growing movement. They regularly argue that drug decriminalization will be good for state economies. Can they sue?