Amicus Curiae Brief — Loper Bright Enterprises, et al., Petitioners v. Gina Raimondo, Secretary of Commerce, et al.

No. 22-451

In the Supreme Court of the United States

__________

LOPER BRIGHT ENTERPRISES, et al.,

Petitioners,

v.

GINA RAIMONDO, in her official capacity as

Secretary of Commerce, et al.,

__________

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF COLUMBIA

__________

BRIEF AMICUS CURIAE OF

THE LITTLE SISTERS OF THE POOR

SAINTS PETER AND PAUL HOME

IN SUPPORT OF PETITIONERS

__________

ERIC C. RASSBACH

Counsel of Record

WILLIAM J. HAUN

COLTEN L. STANBERRY

DANIEL M. VITAGLIANO*

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1919 Pennsylvania Ave. NW

Suite 400

Washington, D.C. 20006

(202) 955-0095

erassbach@becketlaw.org

*Admitted only in N.Y.; practice

supervised by D.C. Bar members

Counsel for Amicus Curiae

QUESTION PRESENTED

Whether the executive power must be checked to

protect the free exercise of religion.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ...................................... iv

INTEREST OF THE AMICUS .................................. 1

INTRODUCTION ....................................................... 2

ARGUMENT ............................................................... 4

I.

The Constitution is designed to limit

overbroad executive power, which

historically led to suppression of religious

dissenters. ........................................................ 4

A. English monarchs frequently used

prerogative

powers

to

punish

religious dissenters..................................... 4

B. The Founders sought to avoid the

historic abuses of the prerogative

power, including suppression of

religious dissenters..................................... 8

II. Contrary to the Constitution’s design,

recent broad uses of executive power

have burdened the religious exercise of

disfavored groups. .......................................... 10

A. The contraceptive mandate. ..................... 11

B. The transgender mandate. ....................... 16

III. Only careful checking and balancing of

the Executive can avoid the wrongful

suppression of religious exercise. .................. 19

iii

A. Chevron deference empowers federal

regulators to infringe on free

exercise rights. .......................................... 19

B. Religious liberty is presumptively a

major question under the major

questions doctrine..................................... 24

C. Congress should be presumed not to

have delegated powers that infringe

on religious liberty.................................... 28

CONCLUSION ......................................................... 31

iv

TABLE OF AUTHORITIES

Page(s)

Cases

A.L.A. Schechter Poultry Corp. v.

United States,

295 U.S. 495 (1935) .............................. 29-30, 30-31

Biden v. Nebraska,

143 S. Ct. 2355 (2023) ........................ 24, 25, 26, 28

Bostock v. Clayton County,

140 S. Ct. 1731 (2020) .......................................... 23

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ................................... 14-15, 27

Carson v. Makin,

142 S. Ct. 1987 (2022) ..................................... 27-28

Case of Proclamations,

12 Coke’s Reports 74 (1611) ................................... 6

Employment Division v. Smith,

494 U.S. 872 (1990) .............................................. 23

FDA v. Brown & Williamson Tobacco

Corp.,

529 U.S. 120 (2000) ........................................ 26, 28

Franciscan Alliance, Inc. v. Azar,

414 F. Supp. 3d 928 (N.D. Tex. 2019).................. 18

Franciscan Alliance, Inc. v. Becerra,

47 F.4th 368 (5th Cir. 2022) ................................ 18

v

Franciscan Alliance, Inc. v. Becerra,

553 F. Supp. 3d 361 (N.D. Tex. 2021).................. 18

Franciscan Alliance, Inc. v. Burwell,

227 F. Supp. 3d 660

(N.D. Tex. 2016) ...................... 17, 18, 21-22, 23, 26

Fulton v. City of Philadelphia,

141 S. Ct. 1868 (2021) .......................................... 29

Gonzales v. O Centro Espírita

Beneficente União do Vegetal,

546 U.S. 418 (2006) .............................................. 24

Gundy v. United States,

139 S. Ct. 2116 (2019) .................................... 28, 30

Heffron v. International Soc. for Krishna

Consciousness, Inc.,

452 U.S. 640 (1981) .............................................. 29

Little Sisters of the Poor Home for the

Aged v. Sebelius,

571 U.S. 1171 (2014) .............................................. 1

Little Sisters of the Poor Jeanne Jugan

Residence v. California,

141 S. Ct. 192 (2020) .............................................. 1

Little Sisters of the Poor Saints Peter &

Paul Home v. Pennsylvania,

140 S. Ct. 2367 (2020) ........ 1, 16, 21, 22, 26, 27, 31

NFIB v. OSHA,

142 S. Ct. 661 (2022) ............................................ 25

vi

Paul v. United States,

140 S. Ct. 342 (2019) ........................................... 28

Perez v. Mortgage Bankers Ass’n,

575 U.S. 92 (2015) ................................................ 19

Police Dep’t of City of Chicago v. Mosely,

408 U.S. 92 (1972) ................................................ 29

Priests for Life v. HHS,

808 F.3d 1 (D.C. Cir. 2015) .................................. 28

Prohibitions del Roy,

12 Coke’s Reports 64 (1607) ................................ 5-6

R (on the application of Miller) v. The

Prime Minister [2019] UKSC 41 ............................ 6

Saia v. New York,

334 U.S. 558 (1948) ........................................ 22, 27

Sisters of Mercy v. Becerra,

55 F.4th 583 (8th Cir. 2022) ................................ 18

State of Texas v. United States Dep’t of

Health & Human Servs.,

No. 7:23-cv-22, 2023 WL 4629168

(W.D. Tex. July 12, 2023) ..................................... 14

The Trial of the Seven Bishops for Publishing a Libel [1688]

12 How. St. Tr. 183 ............................................. 7-8

United States v. Morton Salt Co.,

338 U.S. 632 (1950) .............................................. 20

vii

West Va. Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) .............................................. 24

West Virginia v. EPA,

142 S. Ct. 2587 (2022) .................................... 24, 27

Wheaton Coll. v. Sebelius,

703 F.3d 551 (D.C. Cir. 2012) .............................. 14

Zubik v. Burwell,

578 U.S. 403 (2016) .......................................... 1, 15

Statutes

5 U.S.C. 706 ............................................................... 20

26 U.S.C. 9833 ........................................................... 11

29 U.S.C. 1191c.......................................................... 11

42 U.S.C. 300gg-13 .................................................... 11

42 U.S.C. 300gg-92 .................................................... 11

42 U.S.C. 1983 ........................................................... 23

42 U.S.C. 2000bb-1 ............................................... 22-23

42 U.S.C. 2000bb-3 .............................................. 25, 26

42 U.S.C. 18001 ........................................................... 1

42 U.S.C. 18116 ......................................................... 16

Bill of Rights, 1 W. & M., Sess. 2, c. 2

(1689) ...................................................................... 8

viii

Other Authorities

1 Annals of Cong. 453-454 (Joseph Gales

ed., 1789) ........................................................... 9-10

155 Cong. Rec. S12028 (Dec. 1, 2009) ....................... 11

75 Fed. Reg. 15,599 (Mar. 24, 2010) ......................... 12

75 Fed. Reg. 41,726 (July 19, 2010) .......................... 12

76 Fed. Reg. 46,621 (Aug. 3, 2011) ...................... 12-13

77 Fed. Reg. 16,501 (Mar. 21, 2012) .................... 13-14

78 Fed. Reg. 39,870 (July 2, 2013) ...................... 13, 14

79 Fed. Reg. 51,092 (Aug. 27, 2014).......................... 15

80 Fed. Reg. 41,318 (July 14, 2015) .......................... 15

81 Fed. Reg. 31,375 (May 18, 2016) .................... 17, 18

82 Fed. Reg. 47,792 (Oct. 13, 2017) .......................... 16

83 Fed. Reg. 57,536 (Nov. 15, 2018).......................... 16

85 Fed. Reg. 37,160 (June 19, 2020) ......................... 18

Amity Shlaes, The Forgotten Man (2007) ................. 30

Antonin Scalia, Rulemaking as Politics,

34 Admin. L. Rev. xxv (1982) ......................... 20, 21

Cass R. Sunstein, Nondelegation

Canons, 67 U. Chi. L. Rev. 315 (2000) ................ 29

ix

Cora L. Scofield, A Study of the Court of

Star Chamber (1900) .............................................. 7

David J. Barron & Elena Kagan,

Chevron’s Nondelegation Doctrine,

2001 Sup. Ct. Rev. 201 ......................................... 17

Edward P. Cheyney, The Court of Star

Chamber, 18 Am. Hist. Rev. 727

(1913) ...................................................................... 7

The Federalist No. 22 ........................................... 19-20

The Federalist No. 37 ................................................ 19

The Federalist No. 78 ................................................ 19

Gary Lawson, Discretion as Delegation:

The “Proper” Understanding of the

Nondelegation Doctrine, 73 Geo.

Wash. L. Rev. 235 (2006) ..................................... 29

Herbert Wood, The Court of Castle

Chamber or Star Chamber of Ireland,

32 Proc. of the Royal Irish Acad. 152

(1914) .................................................................. 5, 7

James I, Basilikon Doron (1599) ................................. 5

James Madison, Letter to

Edward Livingston (July 10, 1822) .................... 10

Kurt T. Lash, Power and the Subject of

Religion, 59 Ohio St. L.J. 1069 (1998) ................. 10

x

Lori Montgomery and Shailagh Murray,

In Deal with Stupak, White House

announces executive order on

abortion, Washington Post (March

21, 2010) ............................................................... 12

Mark. L. Rienzi, Fool Me Twice: Zubik v.

Burwell and the Perils of Judicial

Faith in Government Claims, 20152016 Cato Sup. Ct. Rev. 123 (2016) ..................... 15

Michael W. McConnell, The Ninth

Amendment in Light of Text and

History, 2009-2010 Cato Sup. Ct.

Rev. 13 (2010) ....................................................... 25

Michael W. McConnell, Establishment

and Toleration in Edmund Burke’s

‘Constitution of Freedom,’

1995 Sup. Ct. Rev. 393 ........................................... 8

Michael W. McConnell, The President

Who Would Not Be King (2020) ................. 4, 5, 8, 9

P.B. Waite, The Struggle of Prerogative

and Common Law in the Reign of

James I, Canadian J. Econ. & Pol.

Sci. 14 (1959) .......................................................... 5

Petition of Right, 3 Car. 1, c.1 (1628).......................... 6

Philip Hamburger, Exclusion and

Equality: How Exclusion from the

Political Process Renders Religious

Liberty Unequal, 90 Notre Dame L.

Rev. 1919 (2015) ............................................. 20, 21

xi

Philip Hamburger, Is Administrative

Law Unlawful? (2014) .................................. 5, 7, 20

Robert J. Reinstein, The Limits of

Executive Power, 59 Am. U. L. Rev.

259 (2009) ............................................................... 4

Ryan Grim, Joe Biden Worked to

Undermine the Affordable Care Act’s

Coverage of Contraception,

The Intercept (June 5, 2019) ............................... 13

U.S. Dep’t of Labor, FAQs About

Affordable Care Act Implementation

Part 36 (Jan. 9, 2017) ........................................... 15

Wendell Bird, The Revolution in

Freedoms of Press and Speech (2020) .................... 7

William J. Haun, Keeping Our Balance:

Why the Free Exercise Clause Needs

Text, History, and Tradition,

46 Harv. J.L. & Pub. Pol’y 419 (2023) ................. 23

INTEREST OF THE AMICUS 1

The Little Sisters of the Poor (Petites Sœurs des

Pauvres) were founded in 1839 in Brittany, France, by

St. Jeanne Jugan. They are now a Roman Catholic religious congregation of more than 1,500 women who

care for 10,000 elderly poor in 30 countries. From the

very beginning, the Little Sisters have served needy

elderly people of any race, sex, or religion. Amicus Little Sisters of the Poor Saints Peter and Paul Home is

a Pennsylvania religious non-profit corporation that is

part of the congregation.

Based on their Catholic beliefs, the Little Sisters

oppose sterilization, contraception, and abortion, and

believe it wrong to include those procedures in their

employee health benefits. As a result of these beliefs,

the Little Sisters have spent a decade resisting the

regulator-created “contraceptive mandate” promulgated under the 2010 Patient Protection and Affordable Care Act, 42 U.S.C. 18001 et seq. The resulting litigation has resulted in multiple appeals that have

reached this Court. See Little Sisters of the Poor Home

for the Aged v. Sebelius, 571 U.S. 1171 (2014); Zubik v.

Burwell, 578 U.S. 403 (2016); Little Sisters of the Poor

Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct.

2367 (2020); Little Sisters of the Poor Jeanne Jugan

Residence v. California, 141 S. Ct. 192 (2020). That litigation remains pending in district courts in California

and Pennsylvania, with no prospect of resolution in

sight. See Status Report, Pennsylvania v. Biden,

1

No counsel for a party authored this brief in whole or in part

and no person other than Amicus, its members, or its counsel

made a monetary contribution intended to fund the preparation

or submission of this brief.

2

No. 2:17-cv-04540 (E.D. Pa. Apr. 24, 2023), ECF 299;

Joint Status Report, California v. Becerra, No. 4:17cv-5783 (N.D. Cal. May 1, 2023), ECF 493.

The Little Sisters submit this brief for two reasons.

First, they urge the Court to adopt a rule of decision that will ensure that regulators can no longer use

their powers to run roughshod over religious believers.

The Little Sisters’ experience with the contraceptive

mandate shows that where regulators have the power

to expand the reach of a statute beyond its text in ways

that infringe on free exercise rights, sometimes they

will. The Little Sisters request that this Court adopt a

rule to check that executive overreach in a way that

all federal courts—not just this Court—will enforce.

Second, they urge the Court to resolve this case in

a way that would allow them to bring their own odyssey through the federal courts to an end. A decade (and

counting) is too long.

INTRODUCTION

If they could visit us today, the Founders would not

be surprised that at times government officials would

attempt to wield the executive power in ways that go

beyond what is authorized by statute, or that during a

cycle of executive overreach they might use that power

to target religious believers they do not like. After all,

the entire frame of American government was built on

the premise that unlike the British constitution,

power had to be divided among different bodies that

would check each other. That structure was designed

to stop a concentration of power that inevitably led to

abuses. And the Founders were well aware, after the

bloody history of the English religious wars, that those

3

abuses would likely include use of the executive power

to suppress religious exercise.

What would surprise the Founders is that a cycle

of executive overreach has gone so long unchecked. For

more than a decade (and arguably longer) federal

regulators have used their power under Chevron to

target religious believers. Yet the other branches have

not yet brought this overreach to an end. Religious

liberty disputes like the contraceptive mandate

become frozen conflicts that Executive Branch

regulators can continue indefinitely.

This case offers an opportunity for the Court to

exercise the checking role the Constitution entrusts to

it. Abjuring a rule of judicial deference that tends to

fuel executive overreach is a good in itself. But

eliminating undue deference will also reduce future

church-state conflicts, since most recent religious

liberty conflicts have originated not with Congress but

with regulators.

Eliminating Chevron deference will not fix

everything; this Court cannot make Congress do its

job. But this Court can prevent the Executive Branch

from rushing in where Congress fears to tread, and

that alone would be an important rebalancing of

power.

Moreover, as we explain below, eliminating

Chevron deference would complement this Court’s

existing major questions and nondelegation doctrines.

That offers the prospect of ending the current cycle of

executive overreach, thus putting responsibility for

government action back in the hands of the

Constitution’s ultimate guarantor of liberty: the

People.

4

ARGUMENT

I. The Constitution is designed to limit

overbroad

executive

power,

which

historically led to suppression of religious

dissenters.

The history of executive power in the Anglo-American tradition is one of cyclical attempts at executive

dominance that were eventually checked, sometimes

by revolution or war. During periods of executive overreach, religious dissenters were typically the first to

suffer from abuses of executive power. Mindful of

these abuses, the Founders sought to break the cycle

of overreach by limiting overbroad executive power.

A. English

monarchs

frequently

used

prerogative powers to punish religious

dissenters.

During the early modern period, English monarchs

frequently used the royal prerogative power to oppress

religious dissenters. Royal prerogatives were (and are)

“the fully discretionary powers of the executive that

exist independently of statute, and are not subject to

legislative regulation or abridgement.” Michael W.

McConnell, The President Who Would Not Be King

(“President”) 26 (2020). Blackstone held that when the

King exercises a prerogative, “there is no legal authority that can either delay or resist him.” Ibid.

One prerogative was the power of proclamations,

which were issued by the monarch alone, without Parliament’s involvement. The Stuart kings in particular

attempted to extend the reach of proclamations by

“adding legal obligations, beyond those required by

statutes.” Robert J. Reinstein, The Limits of Executive

Power, 59 Am. U. L. Rev. 259, 272 (2009); see also

5

Philip Hamburger, Is Administrative Law Unlawful?

(“Unlawful?”) 33-40 (2014). Indeed, from 1629 to 1640,

Charles I attempted to rule entirely by proclamation,

avoiding going to Parliament to raise funds. Reinstein

272. Other prerogatives invoked by the monarchs were

powers to suspend a law or to dispense from a law in

individual cases. See President 115-117.

Monarchs enforced their prerogative powers by

means of “prerogative courts.” Unlawful? 133-141.

These courts, most notable among them the Star

Chamber and the Court of High Commission, were instituted by legislation, but quickly arrogated to themselves additional powers based on royal prerogative.

Id. at 135. Similarly, in Ireland, the English government instituted a prerogative court known as the

Court of Castle Chamber. See Herbert Wood, The

Court of Castle Chamber or Star Chamber of Ireland,

32 Proc. of the Royal Irish Acad. 152, 152 (1914).

In 1604, shortly after the accession of James I, “the

jurisdictional conflict of the prerogative and the common law began in earnest.” P.B. Waite, The Struggle

of Prerogative and Common Law in the Reign of James

I, Canadian J. Econ. & Pol. Sci. 144, 147 (1959). The

struggle pitted the inquisitorial/civil-law style of the

prerogative courts promoted by James against the

common-law courts, whose champion was Sir Edward

Coke. Unlawful? 40-41. James had come from Scotland, where the law was based to a much greater degree on Roman law and the related ius commune. And

he had written extensively on the divine right of kings.

See, e.g., James I, Basilikon Doron (1599).

Several cases illuminated the conflicts between

royal prerogative and the common law. In the Case of

Prohibitions, the court had ruled that the King had no

6

power to adjudicate cases because he was not trained

in the law. See Prohibitions del Roy, 12 Coke’s Reports

64 (1607). James summoned the judges to explain

themselves, but Coke stood firm that the King could

not decide a common law land dispute. James did not

react well: “With which the King was greatly offended,

and said, that then he should be under the Law, which

was Treason to affirm, as he said; To which I said, that

Bracton saith, Quod Rex non debet esse sub homine,

sed sub Deo et Lege.” Id. at 65. 2

In another prerogative case, the Case of Proclamations, the King’s Bench, again with Coke involved, concluded that all royal prerogatives were subject to law

and that the King could not use prerogative to make

new law: “the King hath no prerogative, but that

which the law of the land allows him.” Case of Proclamations, 12 Coke’s Reports 74, 75 (1611). 3 This principle was later adopted by Parliament—at the instigation of Sir Coke, who had since been fired by the

King—in the 1628 Petition of Right, which significantly limited royal prerogatives. See Petition of

Right, 3 Car. 1, c.1 (1628).

During the struggle between the Stuarts and Parliament, prerogative powers were frequently used to

A version of this quote from Bracton (and Coke) is inscribed

on the pediment of the Harvard Law School library.

2

3

Today, the Case of Proclamations is one of the leading cases

on the nature of royal prerogative in British constitutional law.

See R (on the application of Miller) v. The Prime Minister [2019]

UKSC 41 at [32], [41] (citing the Case of Proclamations for principle that “an attempt to alter the law of the land by the use of

the Crown’s prerogative powers was unlawful”).

7

attack religious dissenters. Catholics were brought before the Star Chamber, including Sir John Yorke, who

was heavily fined for staging an anti-Protestant play

at his home during the reign of James I. See Cora L.

Scofield, A Study of the Court of Star Chamber 47 n.4

(1900). During the reign of Charles I, Archbishop of

Canterbury William Laud “brought six show cases in

the Star Chamber in the 1630s,” all against Puritans,

including William Prynne, who had published religious critiques of Anglican church officials. Wendell

Bird, The Revolution in Freedoms of Press and Speech

83-87 (2020). The Star Chamber sentenced them to

hefty fines, imprisonment, cropping of the ears, branding, and the pillory. See Edward P. Cheyney, The

Court of Star Chamber, 18 Am. Hist. Rev. 727, 747-748

(1913).

Likewise, “[r]eligious dissenters repeatedly resisted the orders and warrants of the High Commission[.]” Unlawful? 137. For example, “Martin Marprelate” was a fictional opponent of the Anglican prelates.

“His audacious creators” were subjected to subpoenas

from the High Commission but managed to evade capture. Id. at 177. In Ireland, the Court of Castle Chamber “devoted much of its time to prosecuting those who

refused to take the oath of supremacy, and jurors who

refused to present against the recusants.” Wood 159.

Ultimately it was a struggle over religion that precipitated the Glorious Revolution of 1688. The Trial of

the Seven Bishops involved seven Anglican bishops

who refused to read out a royal proclamation from the

pulpit as commanded by James II. See The Trial of the

Seven Bishops for Publishing a Libel [1688] 12 How.

St. Tr. 183, 415. When the bishops published their objections to the proclamation in a petition, James II had

8

them tried for libel. Ibid. The bishops were acquitted

at trial, unleashing a wave of public displeasure with

James, leading to his replacement by William and

Mary later that year. President 116.

The Glorious Revolution, which ended the Stuart

dynasty, significantly limited royal prerogative and

established Parliamentary supremacy. The English

Bill of Rights, enacted in 1689, empowered Parliament

to limit and regulate existing royal prerogatives. See

Bill of Rights, 1 W. & M., Sess. 2, c. 2 (1689). And in

its very first provision, the Bill of Rights curtailed executive power: “the pretended Power of Suspending of

Laws, or the Execution of Laws, by regal Authority,

without Consent of Parliament, is illegal.” Id. § 1. A

cycle of executive overreach had ended. 4

B. The Founders sought to avoid the historic

abuses of the prerogative power, including

suppression of religious dissenters.

The Founders learned the lessons of the Glorious

Revolution—including distrust of royal prerogatives—

as part of their Whig “political heritage.” Michael W.

McConnell, Establishment and Toleration in Edmund

Burke’s ‘Constitution of Freedom,’ 1995 Sup. Ct. Rev.

393, 446 (1995). Moreover, the Founders’ experience

with colonial governors “solidified discontent with

broad prerogative powers.” President 20.

In framing the Constitution, the Founders faced a

conundrum—what to do with the royal prerogatives

now that there was no King? On the one hand, their

Parliament has continued to reduce royal prerogatives, and

most (but not all) of those that remain are exercised by the monarch on the advice of the Government.

4

9

Whiggish instincts and the colonial experience did not

incline them to trust executive use of prerogatives. On

the other, the dual experience of weak state governors

and an almost-nonexistent executive under the Articles of Confederation made the problems posed by the

lack of a strong executive apparent to all. President 1921.

The Founders’ solution was to distribute the royal

prerogatives between Congress and the President, and

subject them to checks by the other branches. Thus Article II, Section 2 of the Constitution vests the President with some “clarif[ied] or limit[ed]” prerogative

powers and some “qualified prerogative powers, subject to a senatorial check on a case-by-case basis.” President 264-265. Other royal prerogatives were recast as

“powers” in Article I, Section 8 and “allocate[d] to the

legislative branch.” Id. at 274. “By one scholarly count,

thirteen of the twenty-nine enumerated powers of

Congress were prerogatives of the king.” Id. at 275.

But those powers were also limited because “Congress

cannot administer these powers itself, or through its

own agents.” Id. at 276. The upshot is that the Founders sought to prevent abuses of power by allocating

prerogative powers away from the Executive and ensuring that reallocated royal prerogatives were limited

or in some way subjected to checks by the other

branches.

It was not lost on the Founders that one effect of

the Constitution’s trammeling of executive power was

to protect religious liberty. For example, when introducing the Bill of Rights, Madison argued that it might

be “less necessary to guard against the abuse” by the

Executive of fundamental liberties including “liberty

10

of conscience” because under the Constitution the Executive was obviously the “weaker” branch. 1 Annals

of Cong. 453-454 (Joseph Gales ed., 1789). Madison’s

statement likely reflected Congress’s belief “that including the Executive was unnecessary in light of the

congressional restriction. If there were no religiousbased laws to execute, there would be little opportunity for the President to exercise power over the subject of religion.” Kurt T. Lash, Power and the Subject

of Religion, 59 Ohio St. L.J. 1069, 1097 n.105 (1998).

Moreover, even under the new Constitution with

its “weaker” Executive, Madison was scrupulous about

using executive power in ways that mimicked the old

royal prerogatives. Thus, Madison later said that

when he issued official Thanksgiving Day proclamations he “was always careful to make the Proclamations absolutely indiscriminate” and that such proclamations ought to be “merely recommendatory; without

any penal sanction enforcing the worship.” James

Madison, Letter to Edward Livingston (July 10, 1822),

quoted in Lash 1124-1125. Unlike the Stuarts, Madison actively sought to limit the effect of executive proclamations, not expand them. Founding-era history

thus discloses a vision of a “weaker” Executive wary of

its own powers and actively checked by the other

branches—particularly when it came to fundamental

rights like religious liberty.

II. Contrary to the Constitution’s design, recent

broad uses of executive power have burdened

the religious exercise of disfavored groups.

Today religious liberty is once again endangered by

officials wielding executive power against religious

dissenters like the Little Sisters in direct contradiction

11

of the Constitution’s design. We describe two examples

below.

A. The contraceptive mandate.

The contraceptive mandate is one of the most

prominent examples of executive overreach targeting

religious people, and one that has directly affected the

Little Sisters for a decade.

The history of the mandate is reminiscent of the

Stuarts’ efforts to unilaterally rule beyond the text of

any statute, and to stymie any judicial review of their

actions. Congress passed the ACA in March 2010. One

provision required many employers to offer health coverage that included “preventive care and screenings”

for women. 42 U.S.C. 300gg-13(a)(4). But Congress did

not define “preventive care.” Instead, Congress delegated the definition—and the power to administer the

statute—to various administrative agencies. See ibid.

(“provided for in comprehensive guidelines supported

by the Health Resources and Services Administration”); see also 42 U.S.C. 300gg-92 (HHS); 29 U.S.C.

1191c (Labor); 26 U.S.C. 9833 (Treasury).

During the bill’s passage, proponents consistently

denied that Congress was delegating this obviously

sensitive issue to the agencies. Senator Barbara

Mikulski said, “There are no abortion services included in the Mikulski amendment. It is screening for

diseases that are the biggest killers for women—the

silent killers of women. It also provides family planning—but family planning as recognized by other

acts.” 155 Cong. Rec. S12028 (Dec. 1, 2009). 5 In the

5

Federal statutes at the time mandated contraceptive coverage only for federal employees and their dependents.

12

House, a group of pro-life Democrats secured an Executive Order from President Obama averring that the

ACA contained no mandate for abortion services. See,

e.g., Lori Montgomery and Shailagh Murray, In Deal

with Stupak, White House announces executive order

on abortion, Washington Post (March 21, 2010); Executive Order No. 13535, 75 Fed. Reg. 15,599 (Mar. 24,

2010).

Despite these protestations and assurances, once

the legislation passed, the regulators sought to expand

its scope. Four months after the ACA was enacted,

HHS issued interim final rules requiring employers to

cover preventive services, which it said its subagency

the Health Resources and Services Administration

(HRSA) would define in guidelines. See 75 Fed. Reg.

41,726 (July 19, 2010). After receiving voluminous

comments, including on the potential threat to religious believers, HHS, acting through HRSA, issued

guidelines defining the preventive-care mandate to require coverage for all FDA-approved female contraceptives, including some widely viewed as abortifacients.

HHS also adopted interim final rules requiring employers to follow HRSA guidance. See 76 Fed. Reg.

46,621 (Aug. 3, 2011). At the same time, the agencies

crafted an exemption for “certain religious employers.”

76 Fed. Reg. at 46,623.

But this exemption was exceedingly narrow: it exempted only nonprofit organizations under Section

6033(a)(3)(A)(i) and (iii) of the Internal Revenue

Code—that is, “churches,” “their integrated auxiliaries,” “conventions or associations of churches,” and

“the exclusively religious activities of any religious order.” 76 Fed. Reg. at 46,623. And it applied only if the

employer’s purpose was to “inculcat[e] * * * religious

13

values” and the employer “primarily” employed and

served “persons who share its religious tenets.” Ibid.

As later-disclosed correspondence showed, the narrowness was a feature, not a bug. The agencies intentionally gerrymandered the mandate’s exemption to

limit its reach, knowing that many religious organizations, like the Little Sisters, would not qualify. 6 Highranking regulators tried to determine how altering the

section 6033 tax-filing exemption standard would affect the number of women provided contraceptives under their employers’ health plans. 7 In their public explanation, the agencies asserted that Section 6033 organizations that object to contraceptive coverage were

more likely to employ people of the same faith who

share that objection and thus would be less likely to

use contraceptive services even if covered under their

plan. 78 Fed. Reg. 39,870, 39,874 (July 2, 2013). But

HHS later testified that it had “no evidence” supporting this justification. 8 Regulators were targeting as

many religious dissenters as they thought they could

get away with.

The regulatory legerdemain did not end there. After non-exempt religious objectors filed multiple lawsuits, the agencies began a new rulemaking that revisited the religious exemption. 77 Fed. Reg. 16,501 (Mar.

6

This approach was motivated at least in part by political concerns. See, e.g., Ryan Grim, Joe Biden Worked to Undermine the

Affordable Care Act’s Coverage of Contraception, The Intercept

(June 5, 2019), https://perma.cc/UL83-ZUKK.

See Joint Appendix at 1099-1106, Zubik v. Burwell, No. 141418 (Jan. 4, 2016).

7

Gary M. Cohen Tr. at 34:22-24, Catholic Diocese of Beaumont

v. Sebelius, No. 1:13-cv-709 (E.D. Tex.), ECF 28-2.

8

14

21, 2012). At the same time, the agencies announced a

one-year “safe harbor” delay in enforcing the mandate

against certain nonprofit religious employers.

Wheaton Coll. v. Sebelius, 703 F.3d 551, 552 (D.C. Cir.

2012). That caused most of the nonprofit employers’

lawsuits to be stayed or dismissed as unripe. See, e.g.,

id. at 553 (holding appeals “in abeyance pending the

new rule that the government has promised”). Yet

there was no safe harbor for objecting for-profit religious employers. Thus the agencies ensured that a forprofit employer case (Hobby Lobby) would reach this

Court at least a Term before the non-profit employer

cases.

The agencies were not done. In July 2013, they issued a final rule fully exempting churches and some

religious orders while offering a self-styled “accommodation” to certain non-profit religious employers. See

78 Fed. Reg. at 39,873-39,875. The “accommodation”

was a mechanism by which a nonexempt religious nonprofit would certify its objection to its insurer or thirdparty plan administrator, who would then provide contraceptive coverage to its employees anyway. See 78

Fed. Reg. at 39,874, 39,879, 39,892-39,893. The agencies spread the accommodation mechanism across

multiple different regulations issued by different

agencies. 9

In June 2014, this Court held that RFRA prohibited application of the mandate to closely held, forprofit corporations. See Burwell v. Hobby Lobby

Dividing a single policy across multiple agency actions has

been called “agency smurfing.” State of Texas v. United States

Dep’t of Health & Human Servs., No. 7:23-cv-22, 2023 WL

4629168, at *1 (W.D. Tex. July 12, 2023).

9

15

Stores, Inc., 573 U.S. 682 (2014). The agencies responded to this setback by issuing yet another rule, allowing some closely-held for-profit businesses to use

the “accommodation” mechanism. 79 Fed. Reg. 51,092

(Aug. 27, 2014); 80 Fed. Reg. 41,318 (July 14, 2015).

But the accommodation for non-profit employers was

unaffected, so the lawsuits of the non-profit employers,

including the Little Sisters, continued.

In November 2015, this Court granted certiorari in

several cases challenging the accommodation mechanism, including the Little Sisters’ case. In briefing and

at argument, the government conceded, inter alia, that

the regulations “could be modified” to better protect

religious liberty. See Zubik v. Burwell, 578 U.S. 403,

408 (2016). See also Mark L. Rienzi, Fool Me Twice:

Zubik v. Burwell and the Perils of Judicial Faith in

Government Claims, 2015-2016 Cato Sup. Ct. Rev.

123, 132-142 (2016) (describing various concessions).

Accordingly, a unanimous Court vacated the decisions

below, instructed the parties to attempt to resolve the

dispute, and ordered that no penalties be imposed on

the religious objectors for noncompliance with the

mandate in the interim. See Zubik, 578 U.S. 403.

The agencies negotiated halfheartedly until the

November 2016 election. After the election, and just

days before the change in presidential administrations, the agencies announced that they had been unable to identify a “feasible approach” to modify the regulatory mechanism. 10

10

U.S. Dep’t of Labor, FAQs About Affordable Care Act Implementation Part 36 4 (Jan. 9, 2017), https://perma.cc/R3LNCMSH.

16

The new administration disagreed, issuing a rule

broadening the religious exemption to cover religious

employers like the Little Sisters. See 82 Fed. Reg.

47,792 (Oct. 13, 2017); see also 83 Fed. Reg. 57,536

(Nov. 15, 2018). This Court upheld that rule against

state challenge in Little Sisters of the Poor Saints Peter

& Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020).

But despite the hopes of some, the Little Sisters’ “legal

odyssey” continues in the lower courts. Id. at 2396

(Alito, J., concurring).

What should the Court make of this tangled skein?

The common thread over more than a decade of regulation and litigation is that federal regulators, motivated by politics and ideology, disfavored unpopular

religious groups at every turn. Each loss in this Court

was met not with acquiescence but with yet more aggressive regulatory creativity. The saga of the contraceptive mandate thus epitomizes the kind of executive

overreach the Constitution is designed to protect

against when fundamental rights are on the line.

B. The transgender mandate.

A second prominent example of regulator overreach penalizing religious actors is the transgender

mandate.

Through incorporation of Title IX, Section 1557 of

the ACA prohibits federally funded or administered

health programs from discriminating based on sex. 42

U.S.C. 18116(a). Congress gave HHS discretion to issue rules implementing that prohibition. 42 U.S.C.

18116(c).

HHS used its discretion to import Title IX’s prohibition on sex discrimination while simultaneously refusing to import its religious accommodation. In a

17

2016 rule, HHS interpreted Section 1557’s prohibition

on sex discrimination to include discrimination based

on “gender identity,” or one’s “internal sense of gender.” 81 Fed. Reg. 31,375, 31,384, 31,387 (May 18,

2016). As a result, if a gynecologist performed a hysterectomy on a woman—for, say, uterine cancer—she

would also have to remove a healthy uterus from a person seeking to transition genders. Id. at 31,435,

31,455. This regulatory mandate is enforced by denying funding (including Medicare and Medicaid), falseclaims liability, lawsuits for damages and attorneys’

fees, and other penalties. Id. at 31,439.

In comments on the proposed rule, religious organizations “strongly supported a religious exemption.” 81

Fed. Reg. at 31,379. Not without reason: When Congress enacted Section 1557, it specifically indicated

that the ACA’s antidiscrimination regime incorporated all of Title IX, including its religious exemptions.

See Franciscan Alliance, Inc. v. Burwell, 227 F. Supp.

3d 660, 690 (N.D. Tex. 2016). But like so many noticeand-comment periods, this was little more than a “charade” for the agency. David J. Barron & Elena Kagan,

Chevron’s Nondelegation Doctrine, 2001 Sup. Ct. Rev.

201, 231. HHS refused to incorporate Title IX’s religious exemption. 81 Fed. Reg. at 31,380. The result

was that conduct not considered sex discrimination

under Title IX was sex discrimination under the ACA.

“By not including [Title IX’s religious] exemptions,”

HHS “nullifie[d] Congress’s specific direction” and “expanded the ground prohibited under Title IX that Section 1557 explicitly incorporated.” Franciscan, 227 F.

Supp. 3d at 691 (cleaned up). If Congress wanted to

assign HHS the authority to limit the scope of Title

IX’s antidiscrimination bar when incorporating it in

18

the ACA, “it surely would have done so expressly.” Id.

at 687.

Instead, HHS stated that the agency (not a court)

would apply RFRA on a case-by-case basis. 81 Fed.

Reg. at 31,380. Moreover, HHS predetermined that

the government had a compelling interest. See id. So,

according to HHS, religious groups’ only recourse to

obtain a religious exemption was to ask a department

dedicated to health regulation whether a rule substantially burdened their religious exercise. Ibid.

Multiple religious healthcare organizations sued.

Yet even after they were granted temporary relief, see

Franciscan Alliance, Inc. v. Azar, 414 F. Supp. 3d 928,

944 (N.D. Tex. 2019), the agency walked them around

“a legal Penrose staircase.” Franciscan Alliance, Inc.

v. Becerra, 553 F. Supp. 3d 361, 373 (N.D. Tex. 2021).

HHS first amended the rule in 2020, removing the

2016’s sex-discrimination definition and incorporating

Title IX’s religious exemption. 85 Fed. Reg. 37,160,

37,162 (June 19, 2020). Then, without any notice and

comment, HHS issued a 2021 interpretation “materially indistinguishable from the 2016 Rule.” Franciscan, 553 F. Supp. 3d at 373.

Ultimately, multiple courts of appeal upheld injunctions protecting religious groups from performing

gender-reassignment procedures. See Franciscan Alliance, Inc. v. Becerra, 47 F.4th 368 (5th Cir. 2022); Sisters of Mercy v. Becerra, 55 F.4th 583 (8th Cir. 2022).

And aware of the host of problems underlying its position (ranging from RFRA to the nondelegation and major questions doctrines), the Solicitor General recently

decided not to seek certiorari in either case. But like

the contraceptive mandate, the history of the

19

transgender mandate amply demonstrates the negative impact of unchecked federal regulators on religious exercise.

III. Only careful checking and balancing of the

Executive

can

avoid

the

wrongful

suppression of religious exercise.

There are at least three methods by which the judiciary may check overbroad executive power that

threatens religious liberty. One is not to apply deference where religious liberty is at stake. A second is the

major questions doctrine. And a third is the principle

of nondelegation.

A. Chevron deference empowers federal

regulators to infringe on free exercise

rights.

1. The cases discussed above exemplify why it is a

category error to begin statutory interpretation with

deference to an agency’s resolution of statutory ambiguity. “Those who ratified the Constitution knew that

legal texts would often contain ambiguities.” Perez v.

Mortgage Bankers Ass’n, 575 U.S. 92, 119 (2015)

(Thomas, J., concurring). As Madison put it: “All new

laws * * * are considered as more or less obscure and

equivocal.” The Federalist No. 37, at 236 (James Madison) (Jacob E. Cooke ed., 1961). The mere existence of

ambiguity says nothing about who should resolve that

ambiguity. If any presumption is made under our system, it would be that resolving statutory ambiguities

are the “proper and peculiar province of the courts.”

The Federalist No. 78, at 525 (Alexander Hamilton)

(Jacob E. Cooke ed., 1961). “Laws” under our system

“are a dead letter without courts to expound and define

their true meaning and operation.” The Federalist

20

No. 22, at 143 (Alexander Hamilton) (Jacob E. Cooke

ed., 1961). The Constitution does not assign a God-ofthe-regulatory-gaps role to regulators.

Nor do judge-made deference doctrines reflect Congress’s interpretive intentions. Congress provided in

the Administrative Procedure Act that “the reviewing

court shall * * * interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” 5 U.S.C.

706 (emphasis added). This assignment of interpretive

power is a crucial “check upon administrators whose

zeal might otherwise have carried them to excesses not

contemplated in legislation creating their offices.”

United States v. Morton Salt Co., 338 U.S. 632, 644

(1950).

2. Religious liberty cases often highlight the mismatch between the rationales for judicial deference in

the face of statutory ambiguity and how agencies exploit that ambiguity.

Judicial deference “recognize[s] and excuse[s]” removing issues from democratic judgment on various

grounds: administrative “oversight,” “insulat[ion]”

from politics, “expertise,” and the “necessity” of swift

decision-making. See Philip Hamburger, Exclusion

and Equality: How Exclusion from the Political Process Renders Religious Liberty Unequal, 90 Notre

Dame L. Rev. 1919, 1945 (2015); see also Unlawful?

377-402, 419-440. These rationales “deny the political

component of agency action,” and “foster a view of rulemaking as a more or less mechanical, value-free, nonpolitical exercise.” Antonin Scalia, Rulemaking as Politics, 34 Admin. L. Rev. xxv, xxxi, xxviii (1982). But the

exercise of administrative power over religious liberty

21

brings “the political, accommodationist, value-judgment aspect of rulemaking out of the closet.” Id. at

xxxi. That’s because “the administrative idealization

of scientism and centralized rationality usually renders administrative acts—compared with acts of Congress—relatively indifferent and even antagonistic to

religion and religious concerns.” Hamburger, Exclusion, 90 Notre Dame L. Rev. at 1939-1940.

The Little Sisters’ decade-long ordeal exemplifies

the mismatch between judicial deference and agencies’

exploitation of statutory ambiguity. “[N]o language in

[the ACA] itself even hints that Congress intended

that contraception should or must be covered” as an

aspect of “preventive care.” Little Sisters, 140 S. Ct. at

2382; id. at 2381 (“even the dissent recognizes [this]”).

Yet HHS created a context-free understanding of the

ACA’s “preventive care and screenings” requirement

to mandate insurance coverage of contraceptives and

abortifacients. Supra 11-13. It then crafted religious

exemptions to this mandate based on political calculation. Supra 12-13. HHS took these actions despite the

understanding of Congress and a presidential Executive Order. Supra 11-13. The result was differential

treatment of religious groups based on their tax classification. Sophisticated political and ideological

thinking produced that choice, but that is hardly a basis for judicial deference.

The transgender mandate exemplifies the mismatch too. When HHS imported Title IX’s definition of

“sex” discrimination into Section 1557 of the ACA, it

did so without incorporating Title IX religious exemptions—claiming “Section 1557 was doing ‘new work.’”

Franciscan, 227 F. Supp. 3d at 690. And as to

“‘[f]ederal statutory protections for religious freedom

22

and conscience,’” HHS “refused to agree the protections would apply,” thereby inviting Franciscan and

other health care ministries to “roll the dice and risk

the withdrawal of federal funding and civil liability.”

Id. at 678 n.13. But the district court “decline[d] to give

HHS Chevron deference” (id. at 690), having already

concluded that “the scope and meaning of sex discrimination prohibited by Title IX and incorporated by Section 1557” is a major question. Id. at 687. “If Congress

wished to assign that decision to HHS, it surely would

have done so expressly.” Ibid. Interpreting the text

free from the deferential blur, the district court rightly

held that “[f]ailure to incorporate Title IX’s religious

and abortion exemptions nullifies Congress’s specific

direction to prohibit only the ground proscribed by Title IX.” Id. at 690-691. Applying Chevron deference

would have glossed over that reality.

Neither the First Amendment nor RFRA permit

agencies to have the last word on statutory ambiguities. The First Amendment has long prohibited leaving

“[w]hat was religious * * * to the discretion of a public

official.” Saia v. New York, 334 U.S. 558, 560 (1948)

(discussing Cantwell v. Connecticut, 310 U.S. 296

(1940)). As to RFRA, failing to account for religious

burdens when interpreting statutory ambiguity is

“failing to consider an important aspect of the problem.” Little Sisters, 140 S. Ct. at 2383-2384 (cleaned

up). But requiring agencies to evaluate religious burdens—as both the First Amendment and RFRA do

(see, e.g., 42 U.S.C. 2000bb-3(a))—does not mean an

agency’s RFRA interpretation receives judicial deference. It is “in a judicial proceeding,” not a bureaucracy,

where RFRA “claim[s] or defense[s]” are resolved. 42

23

U.S.C. 2000bb-1(c). So too for the First Amendment.

See, e.g., 42 U.S.C. 1983.

Yet as the above examples show, judicial deference

permits regulators to disregard known substantial

burdens on religious exercise. Take the transgender

mandate. HHS invoked Chevron deference to import

Title IX’s “sex” discrimination prohibition into the

ACA, while disregarding the corresponding federal religious liberty protections in the text of Title IX. See

Franciscan, 227 F. Supp. 3d at 678 n.13, 690-691. Nor

did HHS’s cherry-picking change after Bostock. Compare Bostock v. Clayton County, 140 S. Ct. 1731, 17531754 (2020) (“free exercise of religion” “lies at the heart

of our pluralistic society,” and RFRA “operates as a

kind of super statute”); with supra 18 (court holding

that HHS’s post-Bostock interpretation was “materially indistinguishable from the 2016 Rule.”).

Finally, rejecting the deference paradigm in religious liberty cases corrects some of the false premises

of Free Exercise jurisprudence. Over thirty years ago,

this Court presumed that religious liberty cases would

involve otherwise “solicitous” legislatures choosing not

to accommodate unfamiliar religious practices. See

Employment Division v. Smith, 494 U.S. 872, 890

(1990). But “most religious freedom cases at the Supreme Court in the past decade have come from administrative actions”—and those cases show that

agencies are “generally disinclined to accommodate”

religious people. William J. Haun, Keeping Our Balance: Why the Free Exercise Clause Needs Text, History, and Tradition, 46 Harv. J.L. & Pub. Pol’y 419,

450-451 (2023) (collecting examples).

One of the premises of religious liberty jurisprudence should therefore be that single-focus regulators

24

are particularly unlikely to accommodate religion because religious objectors often ask for exceptions. Cf.

Gonzales v. O Centro Espírita Beneficente União do

Vegetal, 546 U.S. 418, 436 (2006) (“If I make an exception for you, I’ll have to make one for everybody, so no

exceptions.”) And when regulators overreach, “modest

estimates” of the Court’s own competence are no reason to refuse to perform “the function of this Court

when liberty is infringed.” West Va. Bd. of Educ. v.

Barnette, 319 U.S. 624, 640 (1943).

B. Religious liberty is presumptively a major

question under the major questions

doctrine.

The major questions doctrine provides a second

method of restraining executive overreach with respect to religious liberty. Where a proposed agency

rule infringes on free exercise rights, the rule should

be evaluated under the major questions doctrine. See

West Virginia v. EPA, 142 S. Ct. 2587, 2608 (2022).

Put simply, free exercise is a “major question.”

Applying that doctrine to religious liberty means

evaluating the “context” that created the substantial

religious burden—i.e., the “history and the breadth of

the authority that the agency has asserted, and the

economic and political significance of that assertion.”

West Virginia, 142 S. Ct. at 2608 (cleaned up). If that

“context” does not provide “a clear delegation” from

Congress to burden religious liberty in that way, then

the regulatory action is invalid. Biden v. Nebraska,

143 S. Ct. 2355, 2374 (2023); see also id. at 2376 (Barrett, J., concurring) (major questions doctrine “emphasize[s] the importance of context when a court interprets a delegation to an administrative agency.”).

25

Justifications for the major questions doctrine

vary, 11 but using it to prevent religious burdens from

statutory ambiguity comports with the traditional judicial protection for natural rights like religious liberty. Both before and at the Founding, courts used “equitable interpretation * * *, which entails the narrow

construction of statutes so as to avoid violations of natural rights.” Michael W. McConnell, The Ninth

Amendment in Light of Text and History, 2009-2010

Cato Sup. Ct. Rev. 13, 18 (2010). This created a legal

environment where “natural rights control in the absence of sufficiently explicit positive law to the contrary,” which can be viewed “as a clear statement rule

for abrogating unenumerated natural rights.” Ibid.

The same logic shows why religious liberty is a major

question: “clear delegation” ensures that Congress—

as the Constitution contemplates—accounts for “‘profound burdens’ on individual rights,” like religious liberty, along with broader “separation of powers concerns.” Biden, 143 S. Ct. at 2374-2375.

Further, the major questions doctrine is an important complement to RFRA. That statute requires

agencies to account for substantial burdens when

agencies “implement[]” “Federal law.” 42 U.S.C.

2000bb-3(a). And it imposes a requirement that, if

11

Some explain the doctrine “matter[s]” because, “[i]f administrative agencies seek to regulate the daily lives and liberties of

millions of Americans, * * * they must at least be able to trace

that power back to a clear grant of authority from Congress.”

NFIB v. OSHA, 142 S. Ct. 661, 668 (2022) (Gorsuch, J., concurring). Others explain that the doctrine avoids “interpret[ing] a

statute for all it is worth when a reasonable person would not

read it that way.” Biden, 143 S. Ct. at 2384 (Barrett, J., concurring).

26

Congress does not want RFRA to apply to subsequent

Federal law, Congress must “explicitly exclud[e]”

RFRA’s application. 42 U.S.C. 2000bb-3(b). This clear

statement requirement complements the major questions doctrine. At the same time, the major questions

doctrine ensures agencies cannot circumvent RFRA or

subject it to political vagaries. See Franciscan, 227 F.

Supp. 3d at 690-691 (applying major questions doctrine to ACA).

As the Little Sisters’ decade of litigation reveals,

the Government frequently flip-flops on RFRA’s inquiries—protracting the risk of a religious liberty violation. See, e.g., Little Sisters, 140 S. Ct. at 2392 (Alito,

J., concurring) (“In Hobby Lobby, the Government asserted and we assumed for the sake of argument that

the Government had a compelling interest * * *. Now,

the Government concedes that it lacks [one].”). There

is also judicial reluctance toward “exercis[ing] our own

judgment on the question” of what interests are “compelling.” Ibid. By contrast, under the major questions

doctrine, the question “is not whether something

should be done; it is who has the authority to do it.”

Biden, 143 S. Ct. at 2372. This inquiry doesn’t depend

on the changing litigation positions of alternating administrations. Rather, the major questions doctrine

evaluates the “context” of the burden—fixed by “the

history and the breadth of the authority that the

agency had asserted, and the economic and political

significance of that assertion.” Ibid. (cleaned up). This

is a matter of “common sense.” Id. at 2379 (Barrett, J.,

concurring) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)).

27

The contraceptive mandate also implicates the major questions doctrine. The Court has already recognized that “what types of preventive care must be covered” is an “important and sensitive decision.” Hobby

Lobby, 573 U.S. at 697; see also Little Sisters, 140

S. Ct. at 2392 (Alito, J., concurring) (calling this “the

great national debate about whether the Government

should provide free and comprehensive medical care

for all”). “The basic and consequential tradeoffs” inherent in such a question “are ones that Congress would

likely have intended for itself.” West Virginia, 142

S. Ct. at 2613. As the legislative debate confirms, Congress did consider those tradeoffs—and did not “even

hint[] that [it] intended that contraception should or

must be covered.” Little Sisters, 140 S. Ct. at 2382. Indeed, the ACA wouldn’t have passed Congress had

such coverage been expressly included. Supra 11-13.

It is “telling” that Congress “considered and rejected”

such an approach, but HHS nevertheless sought a

“work around the legislative process to resolve for itself a question of great political significance.” West Virginia, 142 S. Ct. at 2620-2621 (Gorsuch, J., concurring) (cleaned up).

What’s more, the authority HHS asserted was not

limited to defining “preventive services.” It also included gerrymandering the “church” exemption. Supra 13. This was a political choice, one made with “no

evidence.” Nor does it comport with the First Amendment. Leaving “[w]hat was religious * * * to the discretion of a public official” is prohibited. Saia, 334 U.S.

at 560. So is the “state entanglement with religion and

denominational favoritism” that follows from “scrutinizing whether and how a religious [organization] pursues its * * * mission.” Carson v. Makin, 142 S. Ct.

28

1987, 2001 (2022). Yet these prohibitions are embraced by the contraceptive mandate, backed up by a

“huge” and “substantial” noncompliance penalty.

Priests for Life v. HHS, 808 F.3d 1, 19 (D.C. Cir. 2015)

(Kavanaugh, J., dissenting from the denial of rehearing en banc).

The contraceptive mandate thus implicates “many

of the factors present in past cases raising similar separation of powers concerns.” Biden, 143 S. Ct. at 2358.

The lack of a clear statement of authorization from

Congress, means it defies “common sense as to the

manner in which Congress is likely to delegate * * *

policy decision[s] of such economic and political magnitude.” Brown & Williamson, 529 U.S. at 133.

C. Congress should be presumed not to have

delegated powers that infringe on

religious liberty.

A third method for constraining overbroad executive power that infringes on religious liberty would be

to apply Article I’s Vesting Clause. That Clause does

“not allow” Congress to delegate “major national policy

decisions * * * even if Congress expressly and specifically delegates that authority.” See Paul v. United

States, 140 S. Ct. 342, 342 (2019) (statement of Kavanaugh, J.). Congress may not “merely announce

vague aspirations and then assign others the responsibility of adopting legislation to realize its goals.”

Gundy v. United States, 139 S. Ct. 2116, 2133 (2019)

(Gorsuch, J., dissenting). This problem could be

avoided by “a nondelegation principle for major questions,” including substantial burdens on religious liberty. See Paul, 140 S. Ct. at 342 (statement of Kavanaugh, J.).

29

Adopting a nondelegation principle for substantial

burdens on religious liberty would be “a contemporary

incarnation of the founding effort to link protection of

individual rights, and other important interests, with

appropriate institutional design.” Cass R. Sunstein,

Nondelegation Canons, 67 U. Chi. L. Rev. 315, 317

(2000). In particular, the nondelegation principle

would recognize the “genuine constitutional problem”

that always exists when “Congress grants improper

discretion to other actors.” Gary Lawson, Discretion as

Delegation: The “Proper” Understanding of the Nondelegation Doctrine, 73 Geo. Wash. L. Rev. 235, 236

(2006). The First Amendment already recognizes the

problem of unbridled discretion. And the Court responds to it by “condemn[ing] licensing schemes that

lodge broad discretion in a public official to permit

speech-related activity.” Police Dep’t of City of Chicago

v. Mosely, 408 U.S. 92, 97 (1972) (“Similar[]” to the

rule in religion cases); see also e.g., Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U.S.

640, 649 (1981) (“more covert forms of discrimination

* * * may result when arbitrary discretion is vested in

some governmental authority”); Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1879 (2021) (strict scrutiny

applies when a policy “invites the government to decide which reasons for not complying with the policy

are worthy of solicitude.”) (cleaned up). Violations of

religious liberty created by the delegation of discretion

should be no different.

In fact, the Court has already invoked this non-delegation principle to prevent a roving religious liberty

violation, albeit an unspoken one. In A.L.A. Schechter

Poultry Corporation v. United States, the Court in-

30

voked the non-delegation principle to invalidate a statute authorizing the President “to approve codes of fair

competition’’ for slaughterhouses. 295 U.S. 495, 521522 (1935) (cleaned up). Based on that statute, “the

President adopted a lengthy fair competition code

written by a group of (possibly self-serving) New York

poultry butchers.” Gundy, 139 S. Ct. at 2137 (Gorsuch,

J., dissenting).

Although the Schechter Court did not mention religious exercise, the issue was the hidden heart of the

case. “Kosher butchers such as the Schechters had a

hard time following these rules.” Ibid. “Sorting out

dangerously unhealthy animals of any sort was a core

principle of kashruth,” “the principle of keeping kosher.” Amity Shlaes, The Forgotten Man 215-216

(2007). But “[k]ashruth was not a modern health code,”

so it lacked credence with regulators. Id. at 216.

“[T]he government apparently singled out the

Schechters as a test case,” with repeated inspections,

abusive treatment, and ultimately “a criminal indictment running to dozens of counts.” Gundy, 139 S. Ct.

at 2137-2138 (Gorsuch, J., dissenting). “To sell a sick

chicken broke the NRA code, and that was all the government lawyers understood. But to suggest, as they

had, that Schechter chicken were unfit was also to suggest something * * * far worse: that they were not

good Jews.” Shlaes 220.

The Schechters were tried and convicted of “selling

one allegedly ‘unfit’ chicken and other miscellaneous

counts.” Gundy, 139 S. Ct. at 2138 (Gorsuch, J., dissenting). The Supreme Court invalidated the law on

non-delegation grounds. Ibid. Justice Cardozo lambasted the discretion given to federal regulators: the

law created “a roving commission to inquire into evils

31

and upon discovery correct them,” a “delegation running riot.” Schechter, 295 U.S. at 553 (Cardozo, J., concurring). The Court thus used the nondelegation principle to protect the Schechters’ religious exercise.

Similarly, this Court has suggested the propriety of

“a constitutional challenge to the breadth of the delegation involved” in the contraception mandate. See

Little Sisters, 140 S. Ct. at 2382. The ACA does not

“provide an exhaustive or illustrative list of the preventive care and screenings that must be included.” Id.

at 2380. Nor is there “any criteria or standards to

guide HRSA’s selections,” or “require that HRSA consult with or refrain from consulting with any party in

the formulation of the guidelines” on what services

must be covered. Ibid. Moreover, HRSA has “virtually

unbridled discretion” to determine who is religious

enough to receive an exemption. See id.

As the Court knows, the Little Sisters have long

taken the position that RFRA and the First Amendment can resolve the contraceptive mandate controversies on their own. However, for the reasons set

forth above, it would also be appropriate for courts to

use the nondelegation doctrine to eliminate the prospects for such long-running mischief by requiring

Congress, rather than agencies, to make the important

policy judgments at issue.

CONCLUSION

Sir Coke told the King he was “sub Deo et Lege” and

lost his job because of it. It is beyond this Court’s writ

to ensure that the executive power remains under

God. But it is emphatically this Court’s province and

duty to ensure that the Executive remain under the

32

law. The Little Sisters urge the Court to reverse the

decision below and abjure Chevron deference.

Respectfully submitted.

ERIC C. RASSBACH

Counsel of Record

WILLIAM J. HAUN

COLTEN L. STANBERRY

DANIEL M. VITAGLIANO

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1919 Pennsylvania Ave. NW

Suite 400

Washington, D.C. 20006

(202) 955-0095

erassbach@becketlaw.org

Counsel for Amicus Curiae

JULY 2023