Debate: Josh Blackman & Daniel Hemel, "Gridlock!"
Profs. Hemel and Blackman debate the relative desirability of gridlock and compromise in our federal government.
Josh Blackman is an Associate Professor of Law at the Houston College of Law who specializes in constitutional law, the United States Supreme Court, and the intersection of law and technology. Josh was selected by Forbes Magazine for the “30 Under 30” in Law and Policy. Josh has testified before the House Judiciary Committee on the constitutionality of executive action on immigration. He is an adjunct scholar at the Cato Institute. Josh clerked for the Honorable Danny J. Boggs on the U.S. Court of Appeals for the 6th Circuit and for the Honorable Kim R. Gibson on the U.S. District Court for the Western District of Pennsylvania. Josh is a graduate of the George Mason University School of Law.
Daniel Hemel graduated summa cum laude from Harvard College and received an M.Phil with distinction from Oxford University, where he was a Marshall Scholar. He then earned his J.D. from Yale Law School, where he was editor-in-chief of the Yale Law Journal. Prior to his appointment, he was a law clerk to Associate Justice Elena Kagan on the U.S. Supreme Court. He also clerked for Judge Michael Boudin on the U.S. Court of Appeals for the First Circuit and Judge Sri Srinivasan on the U.S. Court of Appeals for the District of Columbia Circuit.
Presented on November 7, 2016, by the American Constitution Society and the Federalist Society.
Transcript
Speaker 1 (00:02):
This audio file is a production of the University of Chicago Law School. Visit us on the web at www.law.uchicago.edu.
Josh Blackman (00:20):
...Social, Economic, and political issues. With this legislative agenda frustrated, President Obama, after who this room is named, has taken executive actions to act on these sorts of questions that Congress either ignores or rejects. How does the president do this? By adding expansive glosses to generic delegations of authority. In turn, when they're challenged, the Supreme court is called upon to assess whether the line an executive drew was within his delegated authority. Two of the biggest cases from last year ended as they began: gridlock. In King v. Burwell, the justices declined to answer the validity of the accommodation to the Affordable Care Act contraceptive method. In U.S. v. Texas the court split four to four on whether President Obama's executive action immigration was lawful. Both of these cases involve extremely delicate line drawing. In the former, the justice had to determine whether compliance with this accommodation can pose a substantial burden on the free exercise of religious organizations. In the latter, the court was called upon to resolve the scope of the president's prosecutorial discretion to shield from Google millions of aliens. During oral arguments, I was there, this was our only insight into the case because neither case decided on the merit. The justices seemed divided on how to balance these sorts of competing concerns. In the end, the court resolved neither case, at least for now. The justices can be forgiven for not being able to reach a clear decision on these questions. Why? Congress couldn't either. You see, Congress, and not the courts, should lead these debates on these profound questions of religious liberty and the separation of powers. But in these cases, neither happened. With respect to both the contraceptive mandate and immigration, Congress did not grapple with the sorts of foundational issues implicated in President Obama's action. Congress was entirely silent by religious accommodations for the contraceptive mandate.
Josh Blackman (02:32):
This may blow your mind, but the ACA doesn't even have a contraceptive mandate. All ACA says is that insurance must provide preventive care. What is preventive care? I know, it sounds like an ambiguous term to me. So the agency said we're going to make that mean the full panoply of FDA approved contraceptives. But doing so raises a whole host of accommodation issues, which Congress did not address in the the least. With respect to immigration, Congress affirmatively rejected the president's attempts to change the status quo. There were several bills that would have been for immigration-- they went nowhere. In other words, the law stayed as it was. But President Obama seized on this inaction, this gridlock, this intransigence, to justify the executive actions that he took. This is a mistake. The mere fact that Congress cannot get along and pass the sorts of bills the president wants does not license the president to expand the scope of his own executive authority. And if you doubt that proposition, think what happens if Nate Silver is perhaps correct and tomorrow Mr. Trump wins the election. I think you'll see a sudden reversal, a fear, of how the president can use this pen and phone. For the case of Donald Trump, his Sharpie and Twitter account, to affect bold changes in executive authority. Now on the specifics of these cases, what I argue in my paper is that the major questions doctrine should be a basis on which the court can address these questions. So what is the major questions doctrine? You all know Chevron step one, right? If that provision is ambiguous as long as it's reasonable, then Chevron step two, we defer. But the court is on something that might be called Chevron step zero-- that if the type of thing the agency is doing is such a big deal, such a major question of political economic and social significance, then we don't get to the first step of Chevron. Now, the court has not consistently applied this, it's been used in a few cases here and there. What was the FDA to the Brown and Williamson case? Another involving Massachusetts versus EPA, it's scattered. But the general sense is when the court- I'm sorry, when the agency is trying to take a very general delegation of authority and do something very big with it, that will not fly. I publicly submit that both of these principles apply to the contraceptive mandate case as well as the immigration case. I'll take them in turn. With respect to the contraceptive mandate, Congress and the sponsors of this women's health amendment were very specific not to address what they actually meant. The statute only says women will get what's called preventive care. There are all these colloquia saying, well, wait a minute-- will this cover abortion? And they said, well, it will not cover abortion.
Josh Blackman (05:16):
We're not going to touch the statute. There was every effort made to obfuscate what was probably going to happen. Contrast this with the individual mandate. You may not know this, but the Obamacare individual mandate, which was upheld, exempts certain religions. There was a specific understanding that if your religious burden, I'm sorry- if your religion is burdened by this mandate, you'll be exempt from it. No such exemption was created for the so-called contraceptive mandate. And as a result, the Obama administration has taken upon itself to decide who gets burdened by this and who perhaps gets the burdened less. And the line they basically drew is in a house of worship they're exempt or religious charities are accommodated. What's the difference between exemption and accommodation? With exemption, none of their employees get covered. With an accommodation, the employees get covered but someone else pays for it.
Josh Blackman (06:07):
Why were houses of worship treated one way and religious charities treated another way? The government said, "well, we determined that the employees of these charities are less likely to be as religious." That's a very profound judgement. One that they simply lack the expertise to make because these departments of treasury and health and human services are not in the business of making tough theological decisions about religious liberty. These people were out of their league when they made these accommodations. It's entirely ultra vires. Second, let's turn to the immigration case. This is an even more stark example of why the major questions doctrine is an appropriate form for these cases as resolutions. Congress has had several efforts, several attempts to change immigration law, right? You've got the dream act, which would provide a pathway for the dreamers. And you've got the gang of eight bill which killed Marco Rubio, right?
Josh Blackman (06:59):
The simple comprehensive immigration reform. These would have radically changed our immigration laws. The dream act passed the House and was filibustered in the Senate. The gang of eight bill passed the Senate but was never brought up for vote in the house. Throughout the entire time while all these bills were being debated, immigration groups called on President Obama-- "can you please take executive action to shield these immigrants? You can do something." He said, "well, I don't have the power. I can't do it." But magically, like the mythical Phoenix, as soon as these bills were defeated, this power sprouted up and he discovered it where there was no power before.
Josh Blackman (07:39):
What they're attempting to do is change the status of roughly 30 or 40% of the aliens in the United States who are subject to removal. This is a great, great power. One the president previously disclaimed, but was discovered in the interstices of the immigration market. Here, too, the major questions doctrine provides a sound grounding of this case. The answer is simply this-- the sorts of changes they're making are so extreme that they can't be inferred. Or to Justice Scalia's phrasing: "elephants are not squeezed into mouse holes." If Congress wanted to pass a statute decades ago, giving the AG this unfettered authority, they would have done so more clearly. Congress does not shift and give these sorts of delegations these kinds of statutes, right? To affect changes in immigration policy, they will need something more serious. So in both of these cases, which coincidentally will come back to the court possibly with nine justice, possibly still with eight, will actually have an opportunity to resolve these issues along the lines they suggest. And that will obviate the need to have these difficult judgments or these difficult judgments on the prosecutorial discretion of the presidency.
Josh Blackman (08:54):
So I think that's a basic frame. Now, there's a second part of my discussion which focuses on a different paper. One that's responsive to a paper that Dan's old boss wrote. Justice Kagan, some years ago, wrote a paper- I'm sorry- Professor Kagan, to be precise. Professor Kagan wrote a paper some years ago called Presidential Administration. And one of her claims is that when the White House or the executive office of the president is involved in the rule-making process, right? For us, the fingerprint of someone who is rule-making-- that this should be a license for stronger deference from the courts. Why? Professor Kagan wrote, "well, there's accountability, you know. There's, you know, deputy secretary whatever's making this decision, give it more deference." Also Kagan said that that this entire notion of deferring to agencies because of expertise is rubbish.
Josh Blackman (09:44):
They're going to do whatever they're going to do so let it be about the president top down. I take exception with this and I actually argue, in some cases, evidence of the presence of these elements give a cause for concern. I have a new paper called "Presidential Maladministration," as opposed to "Presidential Administration," which argues that evidence of presidential interference is maybe something going array. And using the examples of the immigration case illustrates this. Why? In the immigration case, you actually had situations where the president and the DOJ have long taken a position that we can't do this. But suddenly after playable defeat, that position flipped. Now maybe, maybe, you know, they've discovered this missing statute in the national archives that actually had the authority all along. But that's not what happened. After they were defeated, they said, "well, we're going to do it anyway."
Josh Blackman (10:32):
Right? We're going to do something really close to what we want to do. The evidence of the president having said, "I will take action when Congress will not," gives me pause that courts should not be so deferential. As well, in the context of the Affordable Care Act, there were a number of times where the various mandates were delayed or suspended. Before these actions were taken, the president consistently said, "I can't do this. I can't do this." But the second politics shifted, he said "oh, I can do this." Now, there's nothing wrong with politics, right? Politicians going to politic all the time. The question is how should courts treat these actions? And my humble opinion that deference that some suggested is owed is not owed. And I will repeat this until I'm blue in the face. Whatever executive action you couple with President Obama doing or President Clinton doing, think of the same power being exercised by President Donald J. Trump. I will stop here, Dan has been taking copious notes. I look forward to this comment and I look forward to engaging with Dan and answering your questions later. Thank you all so much. [Applause]
Daniel Hemel (11:39):
Thanks Josh for coming here and speaking about the presidential authority in gridlock in a day like today. It's sort of like being behind the veil of ignorance, right? We don't know whether we will end up in a situation where it is our guy or girl, our man or woman in office, or the other side. And then we have to ask what structure we would want irrespective of the ideological preferences of the president and of ourselves. And I'm sure that if Donald Trump is elected president tomorrow there would be many things that you would do that I would object to. But I'm not sure I would object to them on the grounds of their presidential administration. I had an objection to them on the grounds of their bad policy. So I'm going to stand up for the presidential administration and against Josh's application of the major questions doctrine. So at the risk of being didactic and using a white board, and actually it's not even a red sky-- we'll be didactic. Let's say we have a statute and Congress uses the word gobbledygook.
Daniel Hemel (12:51):
Okay. And we all know that gobbledygook could mean one of two things. It could mean X or it could mean Y. And the agency has to decide whether it means X or Y, right? The FDA is told: regulate drugs, but now you have to decide whether tobacco is a drug. The department of health and human services and the department of the treasury in implementing the Affordable Care Act are told: make sure that group health plans include preventive care with respect to women. And then they have to decide whether birth control pills and IUDs are preventive care with respect to women. So the major questions doctrine, as I understand it, says "under these circumstances, Chevron does not apply." So under Chevron, we would say, okay, "well, leap statute's ambiguous. Gobbledygook could mean X or Y. We'll leave it to the agency to decide whether it means X or Y." We'll do that for three reasons. One is intent. We think that Congress used the word gobbledygook because it wanted the agency to have the choice between X or Y. The second is expertise.
Daniel Hemel (14:01):
We think, "gosh, the agency is going to be much better at deciding the X versus Y question than we, the courts, are." And the third is accountability. The agency officials are responsible to the president who was elected-- we judges are not. It's a question of whether the courts or the executive branch will make the X or Y determination, not a question of whether Congress will make the X or Y determination. There's no mechanism to punt it back to Congress and say, you use the word gobbledygook. We want to know whether their gobbledygook means X or Y, right? And someone has to decide whether gobbledygook means X or Y. There's no way not to answer the question. Now, I would say that in the FDA v. Brown and Williamson case, it just wasn't a difficult question because the word wasn't gobbledygook, it was drugs.
Daniel Hemel (14:47):
And tobacco is a drug, right? I would also say that in the Affordable Care Act case, it's not a gobbledygook instance, right? The statute says, preventive care with respect to women. Are birth control pills and IUDs preventive care with respect to women? Yes. That's not hiding an elephant in a mouse hole. That is simply using words that have real meaning. Okay. So there was- I don't think there was obfuscation. There might have initially been obfuscation on the abortion question, but preventive care with respect to women-- it's just not ambiguous what you're talking about there. Okay. So Josh then says, instead of the question X versus Y being answered by the executive branch it should be answered by the legislature. I actually disagree with that, but I don't think that's a relevant question when these cases come to the court. Josh then says, "well, the secretary of health and human services doesn't have any authority to exempt religious organizations from the requirement to provide preventive care with respect to women, right? It's either everyone has to provide contraception or no one does. And I would say, that's not true for- and he says, there's no, there's no authority in the ACA no general rule-making authority on these two issues in the ACA. I would say, well, (A) I don't think that's the right interpretation of the ACA. So this was actually- this was implemented by a regulation promulgated by the department of treasury with the department of health and human services and the department of labor. And the secretary of the treasury has the power to promulgate such regulations as may be necessary to carry out the provisions of the chapter relevant to group health insurance.
Daniel Hemel (16:35):
So there's a pretty clear delegation of authority to the secretary of the treasury. But moreover, the religious freedom and restoration act says government shall not substantially burden a person's exercise of religion except if it demonstrates that the application of the burden to that person is in furtherance of a compelling government interest and is the least restrictive means of furthering the compelling government interest. And you said there's no first amendment issue really in the ACA case, because this is about the law of general applicability and employment division versus Smith. That's fine. That's why we need RFRA. I might object to the employment division versus Smith, but that's the law. Okay. So what is the second point? The secretary of the treasury and the secretary of health and human services supposed to do here?
Daniel Hemel (17:26):
Well, I think it's pretty clear, right? If I say "give subway lunchboxes to everyone in this room, but don't give a cookie to anyone who's allergic to chocolate," right? If I would see that command, what I would do was give subway lunchboxes to everyone in the room and for people who are allergic to chocolate, I would take out the cookie, right? That's tactically, what the U S code tells the agencies here. You make sure that all women who aren't enrolled in group health insurance plans get preventive care. And of course, yes, that does include birth controls and IUDS, but take out from that any requirement that would lead someone to- that would substantially burden a person's exercising of religion. So it seems to me that the secretary of health and human services was simply following the commands of the Affordable Care Act. And those are statutes passed at different times so that doesn't matter.
Daniel Hemel (18:22):
The secretary of health and human services is supposed to implement the U.S. Code. With respect to DAPA, with the Deferred Action for Parents of Americans. So the relevant statute, 6 USC 202 says the secretary shall be responsible for establishing national immigration enforcement policies and priorities, right? That's not quoting an elephant in a mouse hole, but that's putting an elephant in an elephant hole, right? That's pretty clear. Secretary of health and human services, I'm sorry, secretary of Homeland security, you figure out are enforcing our immigration enforcement policies and priorities. Well, there are 11 million people here. You can't deport them all. So decide who you will and decide who you won't. And then we have DAPA. And the secretary of Homeland security says if you are the parent of an American citizen and you've been here since 2010 we're not going to deport you. And you haven't committed a crime we're not going to deport you. We're not going to go after an employer who hires you, we're effectively giving you a card that says- doesn't confer any legal status upon you. The memo says "no legal status conferred here," but we're supposed to establish immigration enforcement policies and priorities and one of our priorities is to go after the people whose presence here is problematic. We know that we can't go after everyone. And this wasn't really close to what the Obama administration was initially trying to do. The Obama administration was initially trying to give a pathway to citizenship. And it said that Congress needed to act. And that's true, everyone agrees with that. And then pPresident Obama realized that he had a Congress that wasn't going to act and a way to establish immigration enforcement policies and priorities, which is exactly what 6 USC 202 tells the administration today.
Daniel Hemel (20:14):
So I think here, really, we have a question where someone's got to make the X versus Y determination. I'd much rather it be the executive branch than the courts. We might lament the fact that Congress just said gobbledygook, and didn't tell us X versus Y. Maybe we pine for the old days when the legislature answered those questions. I don't really pine for those days. I'd rather the executive branch be making these determinations on major questions than the legislature. When it comes to expertise, even the member of Congress who's expertise we cannot question, right? Say, take Orrin Hatch on tax issues. He would agree that the assistant secretary of the treasury for tax policy knows a lot more about tax than he does. And of course, because that person has devoted his entire career to the issue.
Daniel Hemel (21:04):
And that that person is a specialist, whereas Orrin hatch needs to know about 50 million things, right? So the agency has the advantage on expertise. The agency has advantage on accountability. You know, we vote for our president and we know who our president is. We probably know who our attorney general is. A lot of us don't know who our member of Congress is. If we did it wouldn't matter because we're not voting in a competitive race in a congressional election. And it's really hard to ascribe accountability for the government's performance to a particular member of Congress, instead we do that through the presidential process. Now, the last advantage the president has versus Congress is transparency. When the executive branch acts it usually does it through notice and comment over 60 days. You have the opportunity to state your view and have that posted on regulations.gov and then considered by the administrative agency when it's coming to its X versus Y determination.
Daniel Hemel (21:54):
Whereas in the House and the Senate, there's a lot going on in back rooms, right? That was why Lyndon Johnson was the master of the Senate. From a transparency perspective, the executive branch beats Congress every day. So the last point is about the statement that we live in a time of gridlock. Now four four decisions at the Supreme court might be described as a gridlock. Ultimately they just affirm the district below, the court of appeals below. So that's the result. But I would say we actually haven't been living in a time of gridlock over the course of the last six years, right? When we've had a Democratic president and Republican control of at least the House.
Daniel Hemel (22:42):
So gridlock is when the North southbound traffic can't move and the East westbound traffic can't move, right? No one's moving. But that's not what's happening now, right? You know, over the course of the last six years, we've seen the Obama administration double fuel efficiency standards, adopt a clean power plan that's going to reduce the CO2 emissions by more than 30% between now and 2030, probably save 2000 lives a year and 90,000 asthma attacks. The Obama administration has capped federal student loan payments at 10% of discretionary income and you only will pay for 20 years of your working life. It's achieved net neutrality, it's expanded STEM cell research, it's done a lot, right? We don't live in an era of gridlock. There's one lane open that lane is executive action. It's pretty darn transparent. We can hold the president accountable. We're talking about administrative agencies that have relevant expertise and a comparative advantage in that respect relative to Congress.
Daniel Hemel (23:46):
So I would say we now live in an era of not gridlock, but one lane open. And I would beg you not to close that lane.
Josh Blackman (23:57):
You know what I call that road? The road to serfdom. So I think- I appreciate Dan very much. Let me open that zinger. There's a lot, there's a lot to respond here and you guys are very fortunate that Dan, in fact, he's been a good friend for some time. So imagine a situation. Imagine a situation where Congress passed a statute that said the secretary of the HHS can make any decision she deems necessary to protect religious liberty, period. Do you think Congress would ever pass such a statute to give such unfettered discretion of religious liberty to the secretary? No, Congress would never enact such a statute. That would be suicidal, right?
Josh Blackman (24:36):
Congress does let agencies balance religious liberty, for example, tax returns. You're a tax scholar. If you are a church, right? An actual house of worship, you are not required to apply for what's called 501(c)3 status. It's basically assumed, you don't have to apply for it. If you're a religious charity, you do have to apply for it. But the difference is, once the church applies and the religious charity applies, they wanted the same spot with the same tax and status. Congress can choose to impose the burden on the charity, but not the church. Agencies simply cannot. You see, my argument is not that under Chevron, they can't decide preventive care means birth control. I actually think they can. I think that's a perfectly legitimate use of Chevron and Chevron's legitimate, but as long as Chevron's legitimate they can do that.
Josh Blackman (25:21):
The problem is picking and choosing. This is not as simple as saying, well, you're allergic to cookies and you're not. You're saying that you have this very unique religious belief and yours isn't quite as unique, right? You're not making a clear cut call. They're doing stuff without any authorization. There's not a single iota of evidence anywhere in the ACA that was supposed to be delegating, this sort of authority. I'll tell you what: under RFRA, if it's burdening religion, an unvarnished act with exam, the answer is exemption. Period. Now about the immigration, Dan mentioned 6 USC 202(5), one of my favorite provisions of the U.S. Code in the last couple of years, which says the secretary has this broad discretion to set priorities. That, if you read it as broadly as the president has, violates non-delegation doctrine, I'm talking Schechter Poultry style, right?
Josh Blackman (26:09):
That would mean that they can set any priorities they see fit. The better way of reading is within the statutory confines. You see, there's a lot of other stuff in the INA about how to cancel its removal, how to give this, how to give that. If we say they can set priorities, meaning anything, period, there are no limits. And this was not an instance of simply prioritizing, this is one of the greatest fictions of ACA. They granted something called lawful presence. Yes, my friends, lawful presence. What is lawful presence? The government refuses to say what that means, but in a nutshell, it lets you work here. It lets you get benefits. In the president's words, it lets you come out of the shadows. This is a wonderful, empathetic goal that I actually agree with as a matter of policy. But this has been more than prioritizing, it's granting this lawful presence. Okay. Now, in terms of transparency Dan has a point here, right? The birth control stuff was done through [inaudible]. The immigration stuff was done through these sort of executive memorandums.
Josh Blackman (27:06):
So there is transparency. But transparency for what? Basically saying, we've discovered this new power, right? When one lane closes, this other lane opens. This is not how our separation of powers works. If we're actually at the point where you can achieve net neutrality, clean power, save people with asthma, whatever else, right? The only idea with that is unilateral authority by how? Citing old statutes and breathing, no pun intended, new life into them. How did we get net neutrality? It wasn't from Congress. It's because Tom Wheeler- the independent commission.
Josh Blackman (27:35):
It wasn't actually the Obama administration, I'm glad you said it that way. It wasn't the Obama administration, it was the independent (quote quote) FCC who said, we're gonna take this new deal era telecommunication statute and you know what? We're going to treat Verizon and Comcast as internet providers, the same way we treated big mobile and AT&T back in the '30s. We're going to take the clean air amendments, which have never been read to regulate carbon emissions. Why? Because Congress won't pass my agenda. Every item he mentioned was through pure executive action. This one lane that's open should be slowed down substantially. You see, gridlock is not involved. Justice Scalia said [inaudible] is a feature of our constitutional framework. You may call them roadblocks. I call them bulwarks of freedom. And these are the things that keep our Republic together. And we want to move to or have one party rule, wherever the executive is can decide how to interpret old statues, completely consistent with its framer's intent, we should probably revisit the constitution altogether. But as long as we have it, I would rather take gridlock rather than going down a one lane highway. Thank you so much. And we'll take some back and forth and questions. Thank you, sir. Thanks. I want to sit back down there, whatever you want. Go for it.
Daniel Hemel (28:50):
Do I, do I get it? Do I get another go at it? So I guess I still don't understand.
Josh Blackman (29:02):
It's not a one way street, Dan.
Daniel Hemel (29:06):
I don't understand the argument that the secretary of health and human services and the secretary of treasury and the secretary of labor didn't have authority to carve out exemptions to the preventive care requirement. So these agencies are told "make sure that the group health insurance plans have preventive care. Don't burden the exercise of religion, right?" So that doesn't mean that it's an all or nothing determination on contraception, it's "we'll provide contraception in any plan where that doesn't burden the exercise of religion.
Daniel Hemel (29:47):
And then maybe they drew the line on, right. Maybe there were some religious institutions that should have been exempted from the contraceptive mandate. And so we can debate that, but you're making a much bigger point. You're saying that the agencies didn't have any authority to carve out from this law of general applicability, groups for which application of the law of general applicability would the burden their exercise of religion. I'm saying yes, they do. 42 UFC 2000b(1), or 2000bb(1), right? The religious freedom and restoration act, it says government-- and that certainly includes the federal government and agencies-- shouldn't substantially burden a person's exercise of religion unless you have to. So that's why I don't understand.
Josh Blackman (30:40):
May I explain?
Daniel Hemel (30:40):
Sure.
Josh Blackman (30:43):
So you know O Centro case, right? Sustained left and right there in the Burke cell, right? So you know the O Centro case, right? When there's a substantial burden, the answer's exemption not create this elaborate regime where some groups are exempted, some are accommodated. If they just exempted all religious charities, period, that would be okay. But this distinction of these religious groups, those not religious enough, those are too religious. That they lack the authority to do.
Daniel Hemel (31:06):
Well, I mean, there's- somehow you have to decide which organizations are religious organizations or not, right? With church it's pretty clear. You know The Bagel on North Broadway serves traditionally Jewish food but is not going to be a religious organization. And then you get some tough questions, like [inaudible]. You know, it's selling knickknacks, but it has a religious mission.
Josh Blackman (31:37):
So then how under the tax codes, you're the tax scholar, how do the tax code agencies determine what is religious and what is not? What are some things you look for? There's a specific thing, I know but you can tell me.
Daniel Hemel (31:46):
Well, I mean, if it's a church, right? Then it's going to be- then it's not going to have to apply.
Josh Blackman (31:52):
I know, but for a religious charity, generally, what are some things they look for?
Daniel Hemel (31:56):
You know, the factors better than I did.
Josh Blackman (31:57):
Okay. So for example, if you're-- I'll do an Obamacare example, cause I know it a little more clearly. If you want exemption from the individual mandate, you have to prove a host of things, for example, that your religion has been in effect since 1950, that it basically wasn't made up. There's like three or four factors Congress spelled out, right? When Congress wants the treasury department to decide what is and is not too religious, they spell it out with some specificity. That didn't happen here with the contraceptive mandate, which has suggested that they didn't give that authority. They can't pick and choose.
Daniel Hemel (32:24):
No, no no. What they did with the religious freedom restoration act is that Congress realized in 1994, oh shucks, there are going to be instances in which laws of general applicability, laws that serve important purposes burden people's religion and we're not going to think about that in every case. So what we're just going to say is "government don't burden people's religion, you figure it out, right? And if you don't figure out, figure it out the court will." So RFRA is-
Josh Blackman (32:53):
Yes, we agree. RFRA is the only delegation that we rely on and RFRA doesn't provide that much authority. RFRA doesn't allow us to erect these massive accommodations where we say "this one gets it, this one doesn't, this is burden a little bit, this is burden less." The answer in RFRA is that if it's the substantial burden and you can't do either way, then the answer is exemption, right? You exempt, you don't accommodate with a lesser burden. That's not put in RFRA.
Daniel Hemel (33:14):
Right, but it can't just be that The Gabel walks in and says I don't want to provide health insurance to my employees because it's against my religion. Now, I don't know where and where in Torah they would find any problems with the Affordable Care Act, but we do have to somehow make a determination whether someone is a religious organization or not. Who's gonna make that? I'd rather it be an executive agency.
Josh Blackman (33:39):
I think, for me, Obamacare is in the Book of Job. [Audience laughs]
Daniel Hemel (33:45):
With respect to the point that DAPA provided lawful presence to parents of Americans. Okay. DAPA used the term lawful presence but made it very clear that it was not deferring legal status on anyone, right? So there's no Schechter Poultry problem here, the secretary of Homeland security doesn't get to make people citizens. He decides who they do it for, right? And that's not a Schechter Poultry problem, that is a reality of anytime you give an administrative agency a task that it could not possibly complete, right? It is not possible to deport 11 million people from the United States. The Homeland security secretary is going to have to establish immigration enforcement policies.
Josh Blackman (34:38):
I have no problem with prioritization but that's not what DAPA is. DAPA says we're giving lawful presence. And this is something significant. It's giving work authorization, various federal benefits. It's giving people an important authorization at various levels.
Daniel Hemel (34:51):
What are the other federal benefits?
Josh Blackman (34:53):
Social Security. An income tax credit.
Hemel and Blackman (34:56):
No. Yes! No. Yes! [Audience laughs]
Josh Blackman (35:06):
Anyway, but the point is, it's not a mere "we're not going to remove you." If Congress said "we'll give you this card saying we won't remove you and nothing else," I wouldn't object to DAPA. But they're going beyond prioritization to changing the status of people in a way Congress never intended and it had never been done before. This was an entirely different exercise in its fashion.
Daniel Hemel (35:22):
So work authorization is the same as saying if you were a DAPA parent we're not going to go after you because there are lots of people who are not here legally who are working and we can't possibly penalize all the employers. So is prioritizing some problematic?
Josh Blackman (35:45):
No, but they're currently giving away social security numbers authorization, they're currently giving stuff.
Daniel Hemel (35:49):
They're giving social security numbers. I don't think they're handing out social security benefits.
Josh Blackman (35:54):
They are. They're eligible. When you're in the deferred status, right? Deferred action is a lawful presence. That triggers social security and income tax credit. It does.
Daniel Hemel (36:06):
As for finding in the Communications Act and the Clean Air Act this authorization that the drafters did not foresee, I agree. That's what happened, right? The drafters of the Federal Communications act of the 1930s, they did not see the internet and they did not see the net neutrality problem in the 1930s.
Daniel Hemel (36:26):
So they gave general authority to the Federal Communications Commission and realized that communications technologies would evolve and so too would the rules, right? We'd seen the transformation from the telegraph to the telephone and we didn't know what was next. And that was the authority that the FCC, which is very much an executive branch agency, very much a part of the Obama administration.
Josh Blackman (36:47):
It's independent! It's an independent agency, a five member board! It's not a part of the Obama administration. It's not.
Daniel Hemel (36:55):
Justice Scalia would have certainly thought that it was part of of the Obama administration. An independent agency is very much part of the executive branch of government, right? I think if you answer it otherwise on an administrative law final exam, that's like a wrong answer. [Audience laughs]
Josh Blackman (37:23):
We have a living constitution, right? We have a living constitution and we're looking at statutes, right? It's all a lie! Title IX's a lie and Title VII is a lie. Amend the statute! Don't make it living, why do we need living statutes?
Daniel Hemel (37:36):
So the same thing with the Federal Food Drugs and Cosmetics Act, we didn't know all the things were drugs in the 1930s. So we gave-- I guess that was before the 1930s-- we gave general authority to- why am I saying this as a conduit? [Audience laughs] The Clean Air act-- we didn't know what all the air pollutants were. We didn't realize that global warning was a problem in the 1970s. So we gave general authority to agencies.
Josh Blackman (38:03):
Aren't we getting a little ritualist now? Should we understand what appears to be the terms we are using? Why are you bringing new time into it? Let the word have a meaning in time and then change if it doesn't.
Daniel Hemel (38:10):
And I'm saying that regardless of-- sure, I'll be an original. Words have meaning, carbon dioxide is an air pollutant, and birth control pills and IUDs are preventive care with respect to women. Thank you. Alright. Eliminate the last word. Now it turns to questions. Thank you so much.
Audience Member 1 (38:37):
So this gets away from the admin you're talking about. Let's say Trump does win tomorrow.
Josh Blackman (38:49):
Nate Silver has gone down to 62% last time I checked, so.
Audience Member 1 (38:54):
And President Obama decides, "well, now I should try to do the best I can to limit the executive authority." Could he do that? What would he have to do? Do you think there's incentives for him to do that?
Daniel Hemel (39:11):
Well, maybe under your view, the answer's yes because- under your view, if we're not sure what gobbledygook means, it could be an X, it could mean Y. Your default is the administrator. The administration can't answer that question, we just revert to the status quo. So if Obama changes the status quo between now and January 20th, I guess under Josh's view, perhaps that would work. That wouldn't work under my view because the new administration would still have the ability to reverse prior administration's Chevron decisions.
Daniel Hemel (39:49):
I mean, what the Obama administration will presumably do between now and January 20th is get through as many rule-makings as it can. And when it does, the rule-making makes it marginally more difficult for the next administration to change things. It has to give a reason. It doesn't have to give a reason why its new policy is better than the Obama administration's, but it just has to give a reason for change. And it probably will have to go through the notice and comment process. So that will save America from January 20th to March 20th. Beyond that,
Josh Blackman (40:26):
but he'll make APA great again! [laughs]
Daniel Hemel (40:29):
At least under my view, no, there's really not that much that the Obama administration would be able to do. And I think I'm okay- I mean, I think if I abstract away from particular personalities, that's the right way to run our democracy.
Josh Blackman (40:44):
Or cults of personality. So I think the problem is look, if Trump wins tomorrow, Wednesday morning, every law professor in the country except for Dan would say "oh my God, administrative law, executive power, separation of powers, we've got to do something, we've got to do something," right? Here's this massive reversal, so old people who basically ignored your class for years will say "Josh, we need you, we need your credibility, we need your framework. Major questions doctor, we have to have judges stop this." It won't matter. The executive, whether you call them Bush or Clinton or Bush or whatever, they're all the same thing. They aggrandized power from the cells. Their policy goals, maybe Dan likes it, maybe I like it, maybe no one likes it. But there's this is one way ratchet. And I'm not particularly optimistic that the next president, whoever he or she may be, will make any marshal differences. They'll keep zipping down that one lane highway, this HOV lane without any holes, without any construction, all the way down to Hyattville.
Audience Member 2 (41:38):
So I guess this is also for Professor Hemel, just looking at the different characteristics you said that are keeping this one lane open and why it's a good thing. Just some of them seem very optimistic, right? So you gave the example of some undersecretary of treasury in one area. And I just wonder from like a component-size perspective, when people vote for the president, how much is their decision affected by who this undersecretary would be? And maybe he isn't, but someone at that level, it could be a political appointee who maybe doesn't have that much expertise. And as far as transparency goes, there might literally be transparency in that they published and people can comment, but what number of people who could be very much affected by our rule will actually go through and do so, especially if, you know, there's some sort of regulatory capture going on.
Daniel Hemel (42:31):
That's a great question. So a few points, one we're making a comparison between the executive and the legislature and I think even political appointees are going to be more expert. The assistant secretary of treasury for tax policy is very much a political appointee but is going to be more expert than Orrin Hatch. And I think Orrin Hatch would agree with that too, right. He would agree that in general, the political appointees know a lot more about the subject matter of their appointment than he does. The second point that I'd make is from the citizens' perspective, if I want to have my voice heard and in some way it's- not everyone is signing onto regulations.gov all the time. You know, you'll have to do something after Tuesday. If you think about all the time that you allocated to 5 38 beforehand, right. You could just spend more time on regulations.gov, but it's easier to communicate a view to the agency official who will make a decision than to the member of Congress who will make the decision.
Daniel Hemel (43:47):
I can write to my member of Congress, but I know how he's going to vote, right? What I really want to do is write a letter to the median legislature whose decision is going to be decisive. And that's a lot harder to do in the congressional setting than it does in the executive setting. And then the third point, which is responsive to your first point, which was, do people really hold the president accountable for what the undersecretary does? You betcha, right? If it weren't for the rollout of the ACA, right? If that had been a seamless process, would this be a close race? People are very much holding, not just president Obama, but his anointed successor responsible for maladministration on the Affordable Care Act. And we vote based on our assessment of how the government has been doing and how the country has been doing. And in, so doing, we are holding the president accountable for everyone in the federal government.
Josh Blackman (45:03):
So the short answer is I don't think there's much accountability and I'll give you an instance. The House v. Burwell suit is challenging the spending of money to the insurance companies that I think was never appropriate. There've been several congressional investigations into this and there's a single memo which explains the rationale why they did this. This memo has been redacted. They refused to release it and they had the assistant secretary of whatever, I can't remember the guy's name, testify and he Stonewalled. He refused to answer and said, "well, we don't have it, blah blah blah." When it actually counts, there's not much accountability. It's only in the mind of the beholder. In terms of something like the ACA, that's a big deal. That's not just a regular obscure Reagan EPA. That's a big deal of X data alive. So I don't think the accountability rationale factors much. If you want to read my article on administration and he's going like this because there's a little thing for him to reply, so I'll let him.
Daniel Hemel (45:54):
Do you think that there's more accountability with respect to members of Congress than there is to the executive branch? You think that when Congress decides that X versus Y question the median member of Congress who decided that X versus Y--
Josh Blackman (46:11):
Congress doesn't need accountability. It has the Constitution on its side. You need to calculate as the agency, you just don't have the Constitution at their back, right? You need something to leap over the fact that you're acting. I don't care if they're accountable, they're acting with the separation of powers. They don't need to be accountable, right? Constitution has in Article 2, as well as in Article 1 that they have lawmaking power, executing power, right?
Daniel Hemel (46:32):
And figuring out what the difference between lawmaking and execution is, is obviously a blurry line. And I don't think here we're talking about instances in which anyone post-1935 believes that--
Audience Member 3 (46:47):
In regards to the question of which branch interpreted gobbledygook, the executive or the courts. Can you explain to people who haven't had constitutional law or administrative law, are there any reasons why a situation of gridlock should lead us to alter the balance between those two interpretive branches from what it would be in a situation of non-gridlock. So, you know, in a situation of intense gridlock, does that make us think like, "oh, we should be more towards the executive?" Or in the situation of non-gridlock being the other way in. Does that answer change based on whether we're following the major questions doctrine or Chevron?
Josh Blackman (47:51):
I'll answer it. I don't think gridlock should change the analogy and I'm sure President Obama doesn't think so either. But as a practical matter, when you do a gridlock, the president can't pass net neutrality statute, he can't pass a cap and trade statute. So Dan said that "we felt like he doesn't need to, so he can take two of these decade old statutes and breathe new life into them, these living, breathing documents. These U.S. codes are alive and puffing and puffing, right? And find these new sources of authority. He's only turning to it. It's always optimal to pass a net neutrality statute, right? It will always be optimal to pass a clean air cap and trade amendment, whatever it is, a new bill, but because you can't be turned to this. And then Dan's question with this beautiful framework is if you use major questions that means the courts are taking a position away from the executive branch. If you don't use major questions then the courts will defer to the executive branch. Who is better suited to make a decision? I think that's a false equivalency. I think it's actually a false choice, right? We asked courts to interpret things all the time and we assume that they are interpreting it as faithful agents of Congress. I don't suddenly assume that the courts are interposing themselves and making stuff up and doing something Congress would want. But if we say that these courts simply do what they always want to do, they're ignoring Congress, then our entire thing of just review kind of falls apart pretty quickly.
Daniel Hemel (49:08):
Well, Chevron applies in cases where we can't figure out what gobbledygook means, right? So there's no faithful interpretation of legislative intent because if there was, there'd be no Chevron in question, right? If we knew that Congress had said X or Y then we would just go with that.
Daniel Hemel (49:23):
Gridlock does change the Chevron analysis, but I don't think- or it changes the Chevron justification, it doesn't change the Chevron analysis. So, one, it doesn't change how courts apply the doctrine. It dodoes affect how we conceive of the doctrine. So in a non-gridlocked era, we might say, "well, let's give the X versus Y determination to the agency for all the Chevron reasons and, icing on the cake, if the agency gets it wrong, then Congress can just fix that." Though one can also imagine an opponent of Chevron saying, "well, why not have the court do its best to figuring out whether gobbledygook means X or Y and if it gets it wrong, then Congress will just change that, right? Congress will just come back." So I think gridlock makes the X versus Y determination higher stakes in an era of non-gridlock.
Daniel Hemel (50:20):
Then Congress will just answer either by acting or by not acting. But today we can't infer anything from legislative inaction. Josh tries, right? Josh says "Congress affirmatively rejected immigration reform." Well, you knew that wasn't true, right? Congress never passed a law that said "no immigration reform," it simply failed to pass a law that said "immigration reform." But while gridlock makes the X versus Y question higher stakes, I think when the stakes are high, I still want the executive branch rather than the courts answering the questions.
Audience Member 4 (50:59):
I was wondering if you were talking in response to Eric's question-- I think, you know, individuals aren't going to be monitoring these kinds of regulations.gov. Whether our country belonging to a federal history of politics can kind of serve as a means by which to simulate intent, expertise, and accountability on the side of the legislative branch. So, if any large group of individuals wants gobbledygook to be X instead of Y you have to form like a group like "certain citizens against Y" to put a cattle prod to the immediate legislature and kind of simulate some of those effects that would be applied to executive agency. Could that be, at least in some respect, a counterbalance?
Daniel Hemel (51:48):
So right. They can and the Sierra club can also get together and lobby the executive branch as it very much does put together comments that are not just, you know, the random- the person who moved from a blog post comment thread to regulations.gov, but put in substantive contributions to which the agency is obligated to respond. Interest group politics also affects presidential elections, like very much so, right? So at the primary level, you know, interest groups in Iowa matter a lot. We know that, right? At the presidential level, we're paying attention to who exactly in Florida is going to the polls. Interest groups matter there too. So I'm not sure why the possibility of interest group politics would make me feel better about the legislature and not the executive branch. Or worse about the executive branch.
Audience Member 5 (52:57):
Sorry to bring this sort of back to the examples from earlier, but specifically talking about the ACA and the tension between that and RFRA, I was wondering, is there some way that- RFRA has two parts, the element burden on religious belief, unless you have a sort of strict scrutiny to satisfy. What room is there for executive interpretation of that standard, thinking that there is a real compelling need to protect the interests of religious charity employees versus no such need in cases where it's a house of worship. Is there some room for discretion in those sorts of things?
Josh Blackman (53:48):
Sure. And actually, let me answer the question because it's a solid one. Is there a substantial burden? Is it restrictive of needs and also are these serving a compelling interest? I actually argue that it's not clear, there's a compelling interest. In saying, "wait a minute, judge, Griswold, Eisenstadt, right? That's a right to birth control by itself. They idea of the right to government-provided birth control? I don't think it's politically compelling. What Congress can be bothered to name it? They couldn't even bother to say it. There's some scattered references to family planning and sexual history but they went out of their way not to say for it to be a birth control mandate. If Congress makes an ambiguous term gobbledygook, gobbledygook cannot be compelling interest. I think that's where it dumped the entire cage. There's no compelling interest here, so pay for it yourself.
Josh Blackman (54:29):
Look, there's another-- hobby lobby. I'm sorry, those sisters can be resolved without any RFRA needed. There can be no way to make those terms compelling interest. But the court doesn't seem to apply it to take my leave. But it's going back up and maybe I can persuade Justice Scarlet, whoever it happens to be, to find my argument.
Daniel Hemel (54:48):
I don't see why ambiguity would undermine the compelling interest argument. Congress used the term preventive care rather than specifying, you know, emergency contraception, birth control pills, IUD, because it didn't know how preventive care would evolve. And wasn't sure whether it should include mammograms or not. I mean, this was not just for contraception. Preventive care was not used as a euphemism for contraception, it was used as a term that has real meaning. That includes contraception and other stuff.
Audience Member 5 (55:32):
You don't think it's ambiguous?
Daniel Hemel (55:34):
I think a word can be ambiguous with respect to one thing and not with respect to another. And no, I don't think preventive care with respect to women is ambiguous with respect to birth control methods. But going back to Blake's question about whether there's a role for the executive branch here because of the second part of the RFRA-- yeah, there is. The RFRA effectively tells the executive branch and every other governmental actor "figure out the least restrictive means," right? And figuring out the least restrictive means is going to involve carving out, right? It's basically saying, use a scalpel, don't use a blunt object and figure out under which circumstances you can advance the requirement without without infringing upon someone's religious interest and where you can't.
Josh Blackman (56:30):
Let's talk about the scalpel example, right? What happens if they said, "well, in a prison, we need to provide Kosher food for Orthodox Jews, but not reformed Jews. Can they do that?"
Daniel Hemel (56:43):
So they would lose, they would lose because there are plenty of reformed Jews who follow the laws of Kashrut too.
Josh Blackman (56:50):
What if they determined that the burden is not too substantial and that "in our judgment, an orthodox individual is more likely to actually use it than a reformed" was a matter of policy.
Daniel Hemel (56:59):
So if there were some huge costs of providing Kosher food that was going to impose a cost on someone else, right? And more than just small monetary cost, maybe a reform Jew versus Orthodox Jew determining line would make sense. I mean, it doesn't make sense.
Josh Blackman (57:20):
Does it make sense to give that sort of authority for prisons to make that call or the Bureau of prisons to make that call?
Daniel Hemel (57:24):
It says, no, the Bureau of prisons makes a lot of calls, right? It doesn't say make bad calls and that's a bad call.
Josh Blackman (57:33):
Well, we're giving them the authority to exempt these.
Daniel Hemel (57:39):
But RFRA doesn't give authority, what RFRA does is it carves out from all other delegations. RFRA carves out from all other delegations' authority and area. It's going to have to be the agency that figures out what's in that area. And in some circumstances, that's going to involve line drawing.
Speaker 1 (58:16):
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