What Does Delay of the Big Mandate Suggest for the Little Mandate?

As has been widely reported, the Obama Administration has decided to delay by one year implementation of the mandate that all employers with more than 50 employees must provide insurance for their employees (I’ll call this the “big” mandate). The reason for the delay seems to be largely economic and administrative: the White House has been persuaded to delay in order to ease the transition for employers.

Over at Religion Clause blog, Professor Friedman suggests that delay in enforcement of the big mandate may also mean that courts will now find greater attraction in dismissing suits against the contraception mandate (which is one small piece of the larger requirement to provide insurance–I’ll call it the “little” mandate) on grounds of ripeness. I confess that this was my first reaction as well; delay in enforcement means that there is more time for the Administration to change its mind, tweak the rule, etc.

But some friends with whom I batted the idea around have persuaded me that such dismissals are not probable. The reason is that as recently as June 25 (exactly 1 week before the announcement about delay), the Administration announced the “final rule” involving the little mandate. That means that the injury (assuming that there is an injury) is no longer speculative. It is certain. Ripeness doctrine aims to ensure than an issue is sufficiently final that it is ready for judicial review.  “A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998). But the little mandate is now final. So unless, as part of its delay on the big mandate, the Administration also indicates that it is now reconsidering the finality of the little mandate, dismissal of a lawsuit against the little mandate on ripeness grounds seems unlikely.

There is another way that delay of the big mandate might affect arguments about the little mandate. The RFRA test demands that once the plaintiffs show that the particular law or rule represents a substantial burden on their religious exercise, the government is required to show that the burden is justified by a compelling interest and that it is pursuing that compelling interest by the least restrictive means. Most of the attention thus far has focused on the means element; many arguments have been advanced that there are many less restrictive means for the government to achieve its interest, assuming that interest to be compelling.

But delay of the big mandate might go to the question of whether the government’s interest actually is compelling at all. It has always been difficult to know precisely what it is that makes a government interest compelling. It may be somewhat easier to identify those characteristics that make an interest not compelling. In his article, “A RFRA Runs Through It: Religious Freedom and the US Code,” Professor Michael Stokes Paulsen wrote that an interest is not compelling if it involves only issues of expense or administration: “Government–except in perhaps the most exceptional situations–does not have a compelling interest in bureaucratic convenience or ease of administration.”

The situation here, however, is a little bit different. The government can say that its interest in, say, “public health” continues to be compelling and continues to be the ground of the contraception mandate. But another even more compelling interest–the economic and administrative expenses that employers will suffer as a result of (what the Administration now believes is) premature enforcement of the big mandate–is more important than whatever interest it has in enforcement of the little mandate right now. The idea is: yes, the contraceptives mandate is important. But it’s even more important that we make it easy for businesses to implement the employee coverage mandate in an economically and administratively feasible manner. We are willing to delay implementation of the mandate to cover employees generally (for economic/administrative reasons), at the expense of getting immediate coverage for contraceptives for those selfsame employees.

In order for that argument to work, however, one would have to be persuaded that the easing of economic and administrative expenses for employers faced with implementing the big mandate is itself a compelling government interest. Up until yesterday, one might have thought that the pursuit of the “public health” represented by the big mandate was more compelling than such economic and/or administrative interests. But now the issue is less clear. And if it is less clear for the sort of public health to be achieved by the big mandate, it may be less clear for the more particular sort of public health to be achieved by the little mandate. It does not seem very persuasive to claim that the government’s interest in the little mandate becomes compelling only at such time when it is more palatable or economically feasible for employers to comply with the big mandate.

It’ll be interesting to see how this shakes out.