A Supreme Court case about fishing regulations might have a big impact on . . . nuns? It’s all about whether courts let the administrative state off the hook. Next Wednesday, the Supreme Court will hear arguments in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, a pair of cases challenging federal fishing regulations. The administrative rules at issue require the fishermen to transport — and pay for — federal agents to ride their boats and monitor their work. Because these rules were issued by regulatory agencies rather than Congress, the cases raise important questions about what is known as the Chevron doctrine — a judge-made rule that tells courts to defer to administrative agencies about the meaning of federal law.
At first glance, fishing regulation would seem to have nothing to do with the Little Sisters of the Poor. The Little Sisters are Catholic nuns who operate homes to care for the elderly poor. But like the fishermen in Loper Bright and Relentless, the Little Sisters have felt the sting of the administrative state. In fact, despite winning their own case three times at the Supreme Court so far, the Little Sisters’ litigation has now entered its second decade, largely thanks to the administrative state. That’s why it should be no surprise that the Little Sisters filed a brief supporting the fishermen and asking the Court to rein in administrative deference.
Former labor secretary Eugene Scalia (son of the late Justice Scalia, who was once one of Chevron’s chief defenders) wrote this week in the Wall Street Journal about many of the ways administrative deference fails to bring consistency to the law and instead promotes “a series of sharp vacillations in the law, as one administration succeeds another.” The Little Sisters’ saga illustrates that point and one other: The modern administrative state forces the country and the courts to endure seemingly never-ending disputes, with bureaucrats and politicians incentivized to just keep the fight alive a little longer.
Readers may recall that the Little Sisters first came to court more than a decade ago, when the Obama administration threatened them with $70 million in annual fines for their religious refusal to provide insurance coverage for contraceptives. That mandate had never been imposed by Congress. Instead it was created by federal agencies making rules under the 2010 Affordable Care Act. The Little Sisters won that fight at the Supreme Court repeatedly (see here and here) and eventually won a permanent injunction ordering the federal government to give them a religious exemption.
That should have been the end of the whole affair. But since the mandate itself hadn’t come from Congress, the federal agencies issued new administrative rules in 2017 to give the Little Sisters the religious exemption required by federal law.
The problem was that, by the time the agencies complied with the law, Donald Trump was president instead of Barack Obama, and blue-state attorneys general were suing the federal government over Trump’s every move. The Sisters’ case was no different, and many states banded together to sue the federal government, claiming that it would harm the states (and their female citizens) for the federal government to give women like the Little Sisters a religious exemption from its own federal law.
That litigation also went to the Supreme Court. The Little Sisters won that case too, in 2020. And while you might expect that a third Supreme Court win would surely have spelled the end of the case, it didn’t. Instead, when the case went back down to the lower courts in the fall of 2020, something else happened: another presidential election. (NB: We have these every four years.)
Once Joe Biden won the 2020 election and gained control of the agencies in question, the incentives changed once again. Now the blue-state attorneys general who had so eagerly brought the suits (and had told courts how urgent they were) suddenly became much less interested in litigating their claims against a president of their own party. They didn’t really want to fight the Biden administration, but they also didn’t want to tell their base that they had given up the fight. So both the Biden administration and the states — who are nominally opponents in these cases — have spent the past several years citing the ongoing regulatory process as a reason to keep the cases alive but not moving forward.
Earlier this week, the Biden administration told a federal judge in Pennsylvania that it does hope to issue a new rule on this issue . . . around August 2024 — i.e., just in time for the next presidential election so we can all get on the merry-go-round once again. It’s the song that never ends.
This pattern exists because the contraceptive mandate is a regulatory creation rather than the work of Congress. We are always near the next presidential election, and therefore regulators are always plausibly thinking about tweaks to administrative rules. They are either newly in office, or soon to leave office, or thinking hard about the question, so they say the time just isn’t right for judicial review. The administrative process just becomes an excuse for never getting to a final answer in court.
That administrative process can also prompt stark reversals by politicians that border on abuse of the federal courts — something the Supreme Court should be eager to rein in. When Donald Trump was president, the blue-state attorneys general told courts (including the Supreme Court) that it was critically important that religious exemptions not take effect — not even for a single day — lest women be deprived of contraception. They said there was a “compelling interest” in denying the religious exemption, and that women even having to “take steps” to sign up for free contraception would impose unacceptable burdens.
In fact, the cases began with these states telling federal judges that it was urgent, that harm would be “irreparable,” and that courts needed to work nights and weekends to stop the religious exemption from taking effect, even briefly:
- In November 2017, California and four other states warned that “women may lose coverage as early as December,” the effects would be “irreversible,” and the harm to the plaintiff states and their citizens would be “both immediate and far-reaching.” Federal courts took this claim seriously, giving California immediate relief in a 29-page order issued just over a week after California’s hearing because of the irreparable harm being imposed “every day” the religious exemption was in effect.
- In December 2018, California — now joined by 13 states and the District of Columbia — asserted that “immediate enforcement of the Rules” created to reflect the Little Sisters’ two Supreme Court victories “will inflict grave and lasting harm upon the States and their residents,” which it warned would be “severe,” “lifelong,” and “irreparable.” Again, the courts took the states seriously, giving them relief just two days after their hearing (a Sunday!), because it accepted their assertion that the challenged rules would cause the states “substantial, and irreparable, harm.”
- After the Sisters appealed to the Supreme Court in 2020, California joined 19 other states and the District in asserting that the challenged rules would result in “immediate” harm, result in “widespread loss of coverage,” and “upend” reproductive health gains for women nationwide.
But that was all when Donald Trump was president. With Joe Biden as president, the same states have endured exactly the same religious exemptions — which have been in effect for the entirety of Biden’s administration — without complaint. The interest groups and big law firms and law professors that had lined up, over and over again, to tell SCOTUS how dangerous religious objections were in earlier rounds of the case? They all fell silent too. One would think these states would be trying to litigate the rest of their claims, and the interest groups that told SCOTUS how much religious exemptions would hurt women would all be filing lawsuits seeking relief. After all, the supposedly onerous religious exemption has remained the law for all of Biden’s presidency. But they are not, because their team is now at the controls of the administrative state. What they told the Supreme Court and other federal courts, over and over again, apparently wasn’t quite right. And so the issue will linger on in court, waiting for the next change in administration to suddenly make them all interested again, and maybe someday needing a fourth or fifth trip to the Supreme Court (if anyone takes the claims seriously the fourth or fifth time around).
That’s no way to run a railroad, much less a constitutional democracy or a federal court system. Cases should not linger indefinitely just because we have elections and different regulators will come and go over time. State governments should not be free to stay in court to cry emergency or fall prostrate depending on whether they like the president. Federal agencies should not get out of defending existing regulations because they are thinking about whether someday they might change them. Parties should not be forced to endure litigation that lasts more than a decade, even with multiple wins at the Supreme Court.
The Supreme Court should not allow the administrative state to continue to warp the rest of our government. Wednesday gives them their next chance to address the problem.