Obamacare, RFRA, and the Perils of Legislative History

Abstract

In NFIB v. Sebelius, four members of the Supreme Court expressed "no doubt" about their ability to read Congress's mind based on the legislative history of the Affordable Care Act. As this essay notes, however, their reading of the legislative history was based on a fundamentally mistaken assumption and ignored the most relevant congressional debates over the Act.

In Sebelius v. Hobby Lobby, the Court will have another opportunity to consider confidently sweeping assertions about legislative history. This time the arguments center on the meaning of the Religious Freedom Restoration Act (RFRA), and the specific contention is that "everyone agreed" in a subsequent congressional debate that RFRA protects for-profit corporations. A full examination of that debate, however, casts considerable doubt on the claim that it demonstrates such an undisputed understanding of RFRA. Accordingly, this essay concludes that the Court would be better advised to interpret RFRA with reference to the surrounding body of law into which it was explicitly designed to be integrated - the Supreme Court's pre-1990 jurisprudence, which had pointedly refused to require religious exemptions from statutory schemes regulating "commercial activity."

Keywords: Contraception, Employee Rights, Employer Rights, Free Exercise, Religious Liberty, RFRA, ACA, Legislative History, Hobby Lobby, Corporate Rights, Civil Rights