Representative Self-Government Was on the U.S. Supreme Court’s Docket Wednesday

May 8, 2020 by David Fowler

Nun and the U.S. Supreme Court
Wednesday, the U.S. Supreme Court heard oral arguments on an extremely important case involving the Little Sisters of the Poor and the Obamacare contraception mandate. But the heart of the issue transcends the mandate itself. That’s why the state of Tennessee and four of the nine members of Tennessee’s congressional delegation filed briefs in the case. They weren’t just coming to the defense of the nuns but defending the very balance of powers that protects self-government.

The issue on Wednesday that was of concern to the state and some of our congressional representatives (U.S. Senator Marsha Blackburn and U.S. Representatives Chuck Fleischmann, Phil Roe, and John Rose) wasn’t Obamacare or the contraception mandate. The real issue was whether the federal courts will once again assume a legislative function and substitute their judgment for the other two branches of the federal government.

The Background: The Hobby Lobby Case

The case arises out of the contraception mandate under Obamacare. You may have thought that questions about the mandate and religious liberty were resolved by the decision a few years ago involving Hobby Lobby. They weren’t. Hobby Lobby just made it clear that the Religious Freedom Restoration Act (RFRA) passed by Congress in the 1990s applied to the mandate.

The Affordable Care Act requires certain employers to offer health coverage that includes “preventive care and screenings” for women. Interestingly, Congress did not define this term. Instead, it left that determination to the Health Resources and Service Administration (HRSA), part of the Department of Health and Human Services.

Under the Obama administration, HRSA defined preventive care to include contraceptives that, according to the U.S. Supreme Court’s Hobby Lobby decision, “include[ ] sterilization and four contraceptive methods that many ‘who believe that life begins at conception regard . . . as causing abortion.’” That is what created the religious exemption issue under the RFRA.

The Obama administration developed a very narrow religious liberty exemption and that is what brought about the Hobby Lobby lawsuit. But there were several others. That led the U.S Supreme Court in 2015 to tell the federal government to go back and figure out how to address all these religious liberty lawsuits.

The Trump Administration to the Rescue

Now, fast forward. With the change in the White House, the Trump administration developed a rule that provided a generous religious liberty exception to the contraceptive mandate.

But Pennsylvania and New Jersey sued the U.S. government over the exception. Now, this is very important: The lawsuit did not involve any claim that contraceptive coverage was a constitutional right. Apart from some important but peripheral issues, the states simply argued that HRSA should not have granted the exemption and that, in any event, the exemption was too broad. 

Religious Freedom Protection Act Applies to All Federal Laws

This is what you need to know about the pretention to legislative power by the 3rd U.S. Circuit Court of Appeals discussed in the next section, the issue now before the U.S. Supreme Court.

RFRA sets forth an affirmative mandate that, when carrying out official duties, each member of the federal government (including federal administrative agencies) “shall not substantially burden a person’s exercise of religion,” absent a compelling interest and use of the least restrictive means. 42 U.S.C. §2000bb-1(a)–(b) (emphasis added). RFRA’s command not to burden religious exercise applies to “all Federal law, and the implementation of that law,” unless a particular statute “explicitly excludes ... application” of RFRA. 42 U.S.C. § 2000bb-3(a)–(b) (emphasis added).

The 3rd U.S. Circuit Court of Appeals Rejects the Religious Exemption

Notwithstanding RFRA’s clear command and directive to federal government agencies, the 3rd Circuit prohibited the federal agency from applying the exemption.

To avoid any claim of bias in my analysis, here is how Pennsylvania and New Jersey described the 3rd Circuit’s decision in their brief:

[T]he 2018 rules exceed the agencies’ authority under the ACA, which delegates to HRSA responsibility only to oversee guidelines that identify which preventive services must be covered for women, not authority to decide who must cover them. Likewise, the court found that RFRA is not a basis for the religious rule because, even assuming RFRA grants rulemaking authority, the existing accommodation does not substantially burden religious exercise.

Let me interpret.

The 3rd Circuit’s First Outrageous Conclusion

By its first sentence, notice that the 3rd Circuit only considered the HRSA’s “authority under ACA,” i.e., Obamacare. The judges completely ignored the command of RFRA that federal agencies take into consideration religious burdens in regard to “all Federal law, and the implementation of that law”!

I would think a first-grader would know what “all” means. I also think a person of average intelligence would know how to answer this question: “Is Obamacare a federal law?”

How can we be a self-governing nation in the sense that we are to live under laws crafted by people we elect to represent us when a panel of unelected judges can ignore those laws when it suits their objective of greater contraceptive coverage?

The 3rd Circuit’s Second Outrageous Conclusion

In the second sentence above, the 3rd Circuit apparently decided that if ignoring the law isn’t allowed by the U.S. Supreme Court, it would inject itself into the agency’s congressionally delegated job of figuring out how best to weigh competing interest in order to comply with both RFRA and Obamacare. The judges may have thought the Supreme Court would like to have that power, too.

Excuse me? Is not weighing competing policy interests exactly and precisely what the policy-making branch of the federal government is supposed to do and what they told the federal agency to do?

In this alternative holding, what we find is a group of unelected, unaccountable, non-representative lawyers wanting to substitute their policy judgments for the judgments of the branches tasked with making policy judgments (Congress) and then carrying out those policy judgments (the Executive Branch).


I would pray that I live long enough to see one or more members in the U.S. House of Representatives care enough about whether the authority we entrust to them is abused and ignored by judges to file a resolution on our behalf to impeach at least one power-grabbing federal judge, like the ones on the 3rd Circuit. But I am not sure I will. At age 62, I suspect it would take a miracle for me to live that long, and I am not sure I’d want to anyway.

But maybe it’s not too much to hope that someday all the Republican members of Congress from Tennessee will join a brief defending their power to represent us against judges that seek to rule us from the bench.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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