The Administrative State as a New Front in the Culture War: Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania

34 Pages Posted: 4 Sep 2020 Last revised: 17 Sep 2020

See all articles by Tanner Bean

Tanner Bean

Fabian VanCott

Robin Fretwell Wilson

University of Illinois College of Law

Date Written: September 3, 2020

Abstract

Culture-war clashes, like that in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, are now routinely decided by the United States Supreme Court. Despite the clear need for lawmaking that puts predictable culture-war fights to rest, “Congress has proven useless.”

Into this legislative vacuum comes the administrative state. As government increases its footprint, agencies increasingly grapple with values questions—over the meaning of nondiscrimination, the importance of protecting vulnerable minorities, the needs of religious communities, and so forth.

Nowhere is this more apparent than the subagencies’ decisions over what drugs women are entitled to under the ACA, which encompassed four that objectors see as cutting off a life—a fact stipulated. The mandate exacerbated America’s deep divisions around abortion.

Initially, the Obama Administration exempted churches because they believed church employees would share its values. No provision was made for other objectors.

Readers know well the post-script. The Obama Administration fashioned an accommodation for nonprofit religious groups that provided coverage for women while taking some religious objectors (although not all) out of the position of paying for those drugs. Burwell v. Hobby Lobby Stores, Inc. hastened the accommodation’s extension to closely held corporations.

The Little Sisters of the Poor rejected the accommodation offered: filing the needed forms would make them complicit in providing drugs they see as both ending and preventing life. Despite the Supreme Court’s urging in Zubik v. Burwell, the parties could not find a resolution where the Little Sisters needed to “do nothing more than contract for a plan,” while giving women seamless “cost-free contraceptive coverage.”

Enter the Trump administration, which exempted all religious and moral objectors. The administration’s fix precipitated Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, upholding these exemptions.

The Court’s decision affirmed the agencies’ authority under both administrations to shape the contours of the law. Just as the Obama administration was authorized by Congress to create the coverage mandate, the Trump administration was authorized to gut it. The decision rested on a close reading of three words out of the ACA’s more than 400,000 words—“as provided for.” By upholding diametrically opposed positions, the Court has ensured that agencies will remain a locus of culture war fights.

Congress could call an armistice in this specific culture-war clash, just as Congress set it in motion. But it has yet to do so.

With political appointments reaching farther into the agencies’ apparatus that interpret and administer our laws, agencies are supplying more of the law’s substance when Congress delegates its decisionmaking.

The Little Sisters of the Poor’s net effect will be to permanently ensconce the administrative state in the culture war. The holding that Congress’ broad delegation supports virtually any agency action (that is not arbitrary or capricious) almost certainly means that administrative whiplash—that is, wildly different approaches to the same question every four to eight years—will become commonplace occurrences in the culture war.

Despite their “long ordeal,” the Little Sisters almost certainly will be back to the Court.

Suggested Citation

Bean, Tanner and Wilson, Robin Fretwell, The Administrative State as a New Front in the Culture War: Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (September 3, 2020). 2019-2020 Cato Supreme Court Review (2020), University of Illinois College of Law Legal Studies Research Paper No. 20-24, Available at SSRN: https://ssrn.com/abstract=3686186

Tanner Bean (Contact Author)

Fabian VanCott ( email )

Robin Fretwell Wilson

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States
217.244.7582 (Phone)

HOME PAGE: http://www.robinfretwellwilson.org

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