When it comes to the ACA, the first major question facing an incoming President Trump will be whether to terminate cost-sharing payments to health plans. Already, prominent voices are calling on him to immediately cut off payments. What effect would that have? And what are his options?
A major initial test for Mr. Trump: What to do about Obamacare’s cost-sharing subsidies, funds that the Obama administration has provided to insurers even though the text of the law itself nowhere provides an explicit appropriation for such spending. As I previously noted, Mr. Trump could immediately cut off these funds to insurers upon taking office. Such an action would be entirely consistent with House Republicans’ lawsuit against the administration for spending money not appropriated — and with the initial legal victory they received from the courts in May.
The legality of the alleged actions by the Obama administration would almost certainly be in question.
“Federal laws protect the confidentiality of tax returns and tax information. According to 26 § U.S.C. 6103, it is unlawful for an employee of the United States or a State to “disclose any return or return information obtained by him in any manner in connection with his service … The law allows for tax information to be used for the limited purpose of determining ACA subsidy eligibility. It does not, however, permit CMS to market ACA subsidies to taxpayers who have already rejected ObamaCare,” CoA states in the FOIA request.
This Article contends that arguments for and against Hobby Lobby both fail to comprehend the special nature of money. As a consequence, opponents of Hobby Lobby wrongly deny the existence of a substantial burden, while Hobby Lobby’s supporters fail to see that the understanding of financial transactions that underlies their conception of complicity refutes their libertarian views. Financial complicity, as construed by Hobby Lobby’s proponents, should be recognized as a burden on religious exercise. But for the same reason that the financial obligations imposed by the “contraceptive mandate” constitute a burden, they also correlate to countervailing state interests that necessarily outweigh the right to religious freedom. A proper assessment of complicity-based claims and a proper application of the compelling state interest standard both require a better understanding of how money ties people together in relationships which make them mutually responsible for one another’s actions, regardless of what they intend. This recognition of how money works is already reflected in our laws against “material support.” This Article seeks to show the similarities between religious conceptions of complicity and legal conceptions of material support and to develop a better theoretical understanding of the distinctive properties of money and financial complicity claims.
The Supreme Court held in Burwell v. Hobby Lobby Stores that the Religious Freedom Restoration Act sometimes requires that for-profit corporations be exempted from federal requirements that would have forced those corporations to act contrary to their sincerely held convictions. But the Hobby Lobby Court misrepresented free exercise jurisprudence and offered an implausible interpretation of RFRA, which if taken seriously would result in exemptions that neither members of the Court nor members of Congress would countenance. In the long run, Hobby Lobby will have to be narrowly construed but in the short run the decision is likely to cause even greater inconsistency in the law, satisfying neither the religious nor the non-religious.
Narrow Tailoring, Compelling Interests, and Free Exercise: On ACA, RFRA, and Predictability by Mark Strasser :: SSRNNovember 4, 2016
The holding of Burwell v. Hobby Lobby Stores, Incorporated is narrow in scope — closely held corporations must be afforded a religious exemption from providing insurance for what are sincerely viewed as abortifacients. That holding is based on an interpretation of federal statute rather than constitutional guarantees. While the opinion’s narrowness might make it appear relatively inconsequential, Hobby Lobby’s import should not be underestimated. This article explains why the Hobby Lobby Court’s expositions of free exercise guarantees and federal statutes are neither plausible nor sensible, and unless Congress corrects the mischaracterization or the courts narrowly construe the opinion, Hobby Lobby will prove to be much more revolutionary than is commonly understood.
In recent years, in both academic and popular circles, the free exercise of religion has grown more controversial. Discussions have become dominated by a set of high-profile cases involving issues of sexual morality — abortion, contraceptives, and (especially) gay rights. Hobby Lobby, for example, involved corporations who refused to provide employees with insurance coverage for contraceptives which were seen as abortifacients. Elane Photography involved a Christian photographer who refused to take photos for a lesbian couple’s wedding on grounds of religious conscience. Hobby Lobby, Elane Photography, and similar cases have become the face of religious liberty to the general public, and it is not clear what will happen to religious liberty because of this association. One thing is certainly clear: These developments have caused many to reconsider the wisdom of the federal Religious Freedom Restoration Act (RFRA) and its state-law analogues (state RFRAs).Yet the discussion has often lacked a sense of perspective. Hobby Lobby and Elane Photography are important cases. But most RFRA and state RFRA cases have nothing to do with discrimination or sexual morality or the culture wars. This piece points out the ways in which RFRA and state RFRAs are continuing to do valuable work for religious minorities — work that no longer seems to get much attention from anyone. Twenty-five years ago, free exercise was associated strongly with the difficult position of religious minorities in an overwhelmingly Christian America. Things are more complicated now, but that aspect of the story remains a true and vital part of it.