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1/ NDCA rejected the Trump Admin's reading of RFRA and the ACA with respect to the contraception mandate. The Court questioned whether RFRA delegates authority to agencies to create religious exemptions based on their own views of what law requires
justsecurity.org/wp-content/upl…
justsecurity.org/wp-content/upl…
2/ The Court explain that the "courts, not the agencies, are the arbiters of what the law and the Constitution require."
3/ In other words, the court rejects what may be called "Statutory Departmentalism." That is, the power of an agency to avoid enforcing a statute where doing so would be illegal.
4/ I discuss the interaction of RFRA and the Contraceptive Mandate in my @HarvLRev article: papers.ssrn.com/sol3/papers.cf… Congress did not delegate the authority to the agency to decide which groups are sufficiently religious to receive an exemption. Doing so is a "major" question.
5/ In this regard, the District Court gets RFRA backwards. This decision also has shades of the DACA litigation, wherein courts faulted agencies for taking actions that the agency determined would be illegal.
6/ Under statutory departmentalism, agencies can avoid taking actions that they think are illegal. And it is not an arbitrary and capricious action if a court disagrees on their assessment of legality.
7/ Ultimately, I predict #SCOTUS will perspective in the DACA and contraceptive mandate litigaiton.
