Two major employment issues are still pending before the Supreme Court this term. The first are the Affordable Care Act cases (Sebelius v. Hobby Lobby Stores, Inc., and Conestoga Wood Specialities Corp. v. Sebelius). The second involves the constitutionality of President Obama’s recess appointments to the NLRB and the validity of decisions made by those appointments (National Labor Relations Board v. Noel Canning).
Both questions could have huge impacts on the workplace. Given the complexity and contentiousness of these decisions, we may not see either of them until June 30. Or they could be issued today.
- The Affordable Care Act Mandates
The employers in the Hobby Lobby and Conestoga Wood Specialties cases are both privately held corporations, their stock shares controlled by their founding families. The employers argue that their rights under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. Sections 2000bb et seq., are violated if they are forced to pay for certain forms of birth control, as mandated by the HHS regulations implementing the Affordable Care Act. The owners of these corporations argue that they have longstanding beliefs that these forms of birth control are immoral.
Hobby Lobby and Conestoga Wood Specialties state that they should not have to pay for insurance coverage subsidizing their employees’ purchase of these forms of birth control, nor should they be forced to pay the financial penalties in the ACA for employers that don’t provide health insurance coverage meeting the HHS requirements.
Although these are statutory cases under RFRA, there is an underlying constitutional question. The First Amendment provides, among other things, that “Congress shall make no law . . . prohibiting the free exercise” of religion. The issue is whether a law that applies generally (like the ACA), which says nothing directly about religion, but which does in fact impact the religious beliefs of some people, can violate the Free Exercise Clause.
Congress, when passing RFRA, ruled that the federal government cannot “substantially burden a person’s exercise of religion” unless the burden is the least restrictive means to further a compelling governmental interest. So the issues before the Supreme Court are (1) whether the ACA mandate furthers a compelling governmental interest and (2) whether the ACA mandate is the least restrictive means to do so.
While it seems odd to think that corporations could have rights to exercise religion, privately held corporations are often seen as extensions of their owners. Moreover, under the Supreme Court’s controversial decision in Citizens United, if corporations have freedom of speech rights under the First Amendment, why wouldn’t they also have freedom of religion rights under the same amendment?
During the Supreme Court arguments in March, it appeared that the justices would split 5-4 in favor of Hobby Lobby and Conestoga Wood Specialties. But we won’t know until the opinion is issued.
Moreover, we don’t know how broadly the Court will rule.
- Will the decision be limited to privately held corporations?
- Will it cover other aspects of the ACA than the mandated coverage of certain classes of birth control, such as blood transfusions and other types of medical treatments that some religious groups object to?
- Might it be read to cover far more than the ACA, such as statutes and regulations mandating equal treatment of women and homosexuals, contrary to some religious beliefs?
It will probably take years of litigation to resolve the unanswered questions from the Court’s coming ruling.
- Recess Appointments to the NLRB
In National Labor Relations Board v. Noel Canning, the issues are at least as far-reaching as those in the ACA cases. The Supreme Court will decide whether President Obama’s recess appointments of three NLRB members were appropriate.
The Recess Appointments Clause of the Constitution authorizes the president “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
The issue in the Noel Canning case is whether the president can only make recess appointments if the vacancy is created during the recess, or whether he can fill any vacancies that existed at the beginning of the recess—which is how modern presidents have interpreted it. While the text of the Constitution seems to indicate the former interpretation, there is clear practice supporting the latter interpretation.
If the justices use a strict constructionist interpretation, then far more than the Noel Canning decision—or even NLRB decisions for the last couple of years—are at stake. President Obama has made many recess appointments beyond those to the NLRB, as have other recent presidents. Many administrative decisions could be subject to challenge if the Supreme Court narrowly interprets the Recess Appointments Clause.
I think it is likely that President Obama will lose on these specific appointments, which were made when the Senate was still in pro forma sessions. However, the fact that the Court has not yet ruled probably means that there is a debate over how broad the opinion should be.
In other situations, Chief Justice Roberts has tried to find a minimally disruptive way to rule on major cases. We shall see if he attempts to do so in this case.
So, stay tuned! The next week should be interesting for SCOTUS watchers.
Any guesses as to what the Court might decide?