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Kennedy’s Question

How will the Court decide Hobby Lobby?

Apr 28, 2014, Vol. 19, No. 31 • By ADAM J. WHITE
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Again, Justice Kennedy’s habit of connecting federalism to liberty is by now so well established that it borders on conventional wisdom. But Madison’s famous words in Federalist 51 were not limited to federalism. Madison saw liberty protected not just by the division of power between the national and federal governments, but also in the division of power, within the national government, “among distinct and separate departments”—or, the separation of powers among the legislative, executive, and judicial branches, which ensures that the national government “will be controlled by itself.”

This second structural protection seems to be on Justice Kennedy’s mind, and in the latest constitutional case involving Obamacare, no less. But Justice Kennedy’s allusions to this constitutional theme, at recent oral arguments, have gone largely unnoticed.  

In Sebelius v. Hobby Lobby, the Hobby Lobby arts-and-crafts company argues that the Health and Human Services Department’s “contraception mandate” violates the company’s (and its owners’) right to freely exercise religion. Their claims are rooted in the First Amendment’s fundamental protections, but they are more immediately protected by the Religious Freedom Restoration Act, a 1993 statute that provides that generally applicable federal laws should not be enforced in a way that would “substantially burden a person’s exercise of religion,” unless the law is the “least restrictive means of furthering” a “compelling government interest.”

In the run-up to the Hobby Lobby case, most discussion focused on questions of whether corporations actually have free-exercise rights, or whether HHS’s regulations truly burden those rights to an unlawful degree. But at oral argument, as legal writers Ed Whelan and Josh Blackman noted, Justice Kennedy seemed keenly interested in questions of constitutional structure. This time, his questions went not to the allocation of power between the federal government and the states, but the allocation of power among Congress and the executive branch. 

Congress did not impose the contraception mandate on employers; the administration did. The Affordable Care Act directs large employers only to provide employees the opportunity to enroll in “minimum essential coverage,” pursuant to HHS’s implementation of the act. And so, with Solicitor General Donald Verrilli at the podium, Kennedy stressed the fact that this collision between Obama-care and religious liberty arose not because the statute itself forced HHS’s hand, but because HHS itself had used a vague statute to force the constitutional issue:

Now, what—what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined? I recognize delegation of powers rules are somewhat moribund insofar as their enforcement in this Court. But when we have a First Amendment issue of this consequence, shouldn’t we indicate that it’s for the Congress, not the agency, to determine that this corporation gets the exemption on that one, and not even for RFRA purposes, for other purposes?

By mentioning “delegation,” Justice Kennedy seemed to allude to the “nondelegation doctrine,” a longstanding principle of constitutional structure rooted in Article I, Section 1 of the Constitution. That provision vests Congress, and Congress alone, with “all legislative powers” granted to the national government. Thus, the nondelegation doctrine, as developed by the courts, prohibits Congress from “delegating” its legislative power to any agency.

It is not a doctrine that lends itself easily to bright-line standards—as Justice Scalia has observed, “the debate over unconstitutional delegation becomes a debate not over a point of principle but over a question of degree.” In practice, as seen in the Court’s precedents, the nondelegation doctrine requires only that Congress specify an “intelligible principle” to guide and limit the agency that applies Congress’s enactment.

In fact, Kennedy’s allusion to “delegation” may have surprised observers, if only because the Court has so rarely invoked the doctrine to strike down statutes. As the Court itself noted in 2001, only twice in the nation’s entire history has the Court used the doctrine to strike down a federal statute—both times in 1935. Or, as Cass Sunstein, a law professor and former Obama White House official, wrote in 2000, “We might say that the conventional doctrine has had one good year, and 211 bad ones (and counting).”

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