Thoughts on the Big and Little Mandate

I've posted a few thoughts over here about the possible legal effect that delay in enforcement of the mandate that employers with over 50 employees provide health insurance for those employees might have on the contraception mandate. Those thoughts concern the effect on ripeness dismissals and the compelling interest standard under RFRA. The Becket Fund yesterday issued a statement that seems consistent with my ripeness discussion; given the finality of the rule, one would have to have an indication that the government were reconsidering that finality in order for ripeness considerations to be reactivated. But I am not certain about the title of the Becket Fund statement: "Abortion-drug Mandate Not Affected by Administration's Delay of Parts of Health Care Law." Might there be some effects, even if those effects do not relate to ripeness? Are there arguments about the contraceptives mandate that are affected by the decision to delay on the employer insurance mandate?

It would be useful to have some informed and thoughtful comment about the legal ramifications, if any, on the specific issue of the government's decision to delay enforcement of the "big" mandate on the pending cases involving the "little" mandate, either in response to my thoughts over at CLR Forum or otherwise. I hasten to add that I am not sure at all that there are any such effects; the provisions at issue are distinct. Just wondering.

UPDATE: Over in the comments at Volokh, Professor Jonathan Adler said this:

The problem is that the "big mandate" and the "little mandate" are based in different provisions of the law. One provision requires employers to provide qualifying health insurance or pay a penalty. A separate provision requires employer-provided plans to cover preventative services. The contraception mandate is based on the latter, and the penalties under this provision are far higher. The only way this decision can effect the contraception mandate is that it gives employers the option of avoiding the penalty by dropping their insurance coverage altogether, but they arguably have this option now in states with federal exchanges. The Administration's decision in no way insulates employers from the substantial penalties for failing to include contraception in their plans. In other words, this decision does not ease or delay the burden placed on any of the current plaintiffs.

And I said this in response:

Thanks, Jonathan. I suppose that's right. But might an argument like this work: by delaying the "big" mandate, the Administration is also saying something about the "little" mandate that might be relevant to the compelling state interest inquiry. That is because by delaying implementation of the big mandate, employers benefited by that delay will not need to comply with the little mandate as well. They will not need to provide contraceptive coverage to their employees during the delay. Employees of such employers will not get the benefit of the little mandate right now; the government's interest in getting them access to the benefits of contraception are yielding to the interests of the employers in cost, administration, etc.

So the argument from the point of view of the present plaintiffs might be: if the government's interest in the little mandate really were "compelling" (as that term is used in RFRA), the government would not be taking the steps that it is with respect to delay of the big mandate. It would be moving ahead at full speed to enforce that big mandate, in part to achieve the benefits of the little mandate for all of the employees out there that stand to gain. Instead, the government has chosen to selectively enforce the little mandate only as to those employers who already have a health plan in place. But if the government's interests in the little mandate truly were compelling (in the RFRA sense), then it would enforce that interest uniformly. It would not pick and choose when to enforce it. And it certainly would not permit the economic interests of employers interfere with its compelling interest.

I am not endorsing this argument. Just wondering whether it is a plausible one, even though the provisions are, as you say, different.

Prof. Adler is an astute observer of the constitutional scene and he has a firm grasp of the various provisions of the health care law, so he's probably right on this one. Still, any thoughts on this set issues would be welcome.