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1/ Judge O'Connor (N.D.TX) enters permanent injunction to bar enforcement of contraceptive mandate.
drive.google.com/open?id=1N47Yo…
drive.google.com/open?id=1N47Yo…
2/ The court found that the Tax Cuts and Jobs Act did not alter the analysis. Even though there is no penalty for failing to comply with the individual mandate, "the Individual Plaintiffs are [still] required by law to purchase ACA- compliant health insurance."
3/ Therefore, the court concludes, the individual mandate imposes a substantial burden on the Plaintiffs' free exercise of religion, in violation of RFRA. (Here, the Court cites my @UTLawTROLP article: papers.ssrn.com/sol3/papers.cf…)
4/ Earlier this year, a District Court in Philadelphia entered a nationwide injunction to bar the administration from implementing a new accommodation. In response, the Plaintiffs certified a class, arguing that the contraceptive mandate itself is unlawful.
5/ If I'm reading this right, the government is now subject to a nationwide injunction to continue enforcing the contraceptive mandate, as well as a final judgment to stop enforcing the contraceptive mandate with respect to the certified class.
6/ I previously wrote about dueling cosmic injunctions. I hadn't considered what happens when a nationwide injunction conflicts with a certified class action. lawfareblog.com/dueling-cosmic…
7/ To be clear, the "Employer Class" and "Individual Class" are defined very broadly. In most regards, there is now a near-complete conflict between the Pennsylvania nationwide injunction, and the Texas class-based permanent injunction.
8/ And, as far as I can tell, this decision is not stayed. The government will now have to ask the District Court for a stay, and if not, seek emergency relief from the 5th Circuit. This issue had largely fallen off my radar, but may go upstairs quickly.
9/ This vehicle may also give the administration a hat-trick: (1) hold that class action certifications, and nationwide injunctions, are the correct remedy, (2) hold that the accommodation is lawful, and (3) hold that the contraceptive mandate itself is unlawful #scotus
10/ To be precise, the judgments are not in conflict. EDPA held that accommodation to the mandate is unlawful. NDTX held that the mandate itselt is unlawful.
11/ This situation resembles the DACA conflict. NDCA court held that DACA rescission is unlawful. SDTX held that DACA itself is unlawful.
18/ For reaons I explain here, a decision that underlying policy is unlawful obviates question of whether subsequent executive action is also unlawful lawfareblog.com/dueling-cosmic…
