Tagadministrative state

Ballotpedia survey shows no state constitution or administrative procedure act requires agencies to prove rule violators acted knowingly before imposing penalties

A Ballotpedia survey of all 50 state constitutions and administrative procedure acts (APAs) revealed that no state constitutions or APAs require agencies to prove rule violators acted knowingly before imposing penalties after adjudication. Without those requirements, state agencies may be able to order people and businesses to pay fines for breaking rules without proving whether rulebreakers did so knowingly.

Agency adjudication is a quasi-judicial process that takes place in the executive branch of the state government instead of in the judicial branch. Often, the procedural protections associated with adjudication are different from those found in a traditional courtroom setting.

Adjudication proceedings include agency determinations outside of the rulemaking process that aim to resolve disputes between either agencies and private parties or between two private parties. The adjudication process results in the issuance of an adjudicative order, which serves to settle the dispute and, in some cases, may set agency policy.

States traditionally require prosecutors in criminal cases to demonstrate that a defendant committed a crime knowing that the behavior was wrong, often known as mens rea. While traditional in criminal proceedings, this survey examined whether state agencies must also prove that people and businesses committed acts they knew violated regulations before issuing fines and penalties.

Understanding the burden of proof agencies must meet before charging fines and penalties provides insight into procedural rights at the state level. Procedural rights is one of the five pillars key to understanding the main areas of debate about the nature and scope of the administrative state.

To learn more about Ballotpedia’s survey related to procedural rights, see here:

Want to go further? Learn more about the five pillars of the administrative state here:

Additional reading:



Federal Register weekly update: 2020 total tops 45,000 pages

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s regulatory activity.
From July 20 to July 24, the Federal Register grew by 1,376 pages for a year-to-date total of 45,056 pages. Over the same period in 2019 and 2018, the Federal Register reached 36,454 pages and 36,398 pages, respectively. As of July 24, the 2020 total led the 2019 total by 8,602 pages and the 2018 total by 8,658 pages.
The Federal Register hit an all-time high of 95,894 pages in 2016.
This week’s Federal Register featured the following 577 documents:
• 444 notices
• five presidential documents
• 49 proposed rules
• 79 final rules
One proposed rule concerning nuclear emergency preparedness and four final rules regarding drinking water standards, federal home loans, pipeline safety standards, and pilot professional development were deemed significant under E.O. 12866—meaning that they could have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Trump administration in 2020 has issued 23 significant proposed rules, 39 significant final rules, and one significant notice as of July 24.
Not all rules issued by the Trump administration are regulatory actions. Some rules are deregulatory actions pursuant to President Trump’s (R) Executive Order 13771, which requires federal agencies to eliminate two old significant regulations for each new significant regulation issued.
Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.
Click here to find yearly information about additions to the Federal Register from 1936 to 2018.


Montana governor lawsuit challenges U.S. Bureau of Land Management director nomination

On July 20, Montana Governor Steve Bullock (D) filed a lawsuit aimed at prohibiting acting director of the U.S. Bureau of Land Management (BLM) William Perry Pendley from exercising the director powers of the agency. The lawsuit argues that Pendley, who President Trump officially nominated to become director of BLM on June 30, 2020, serves as director in violation of the Federal Vacancies Reform Act (FVRA) and the Appointments Clause of the U.S. Constitution.
According to the lawsuit, Pendley’s exercise of the director’s powers defies the Appointments Clause of the U.S. Constitution, which requires U.S. Senate confirmation of presidential appointments. The lawsuit further argues, however, that Pendley continuing to serve as acting director of the agency after his nomination to become permanent director violates the Federal Vacancies Reform Act (FVRA). Bullock argues that, “The Federal Vacancies Reform Act bars Presidents from circumventing the Constitution by putting people in charge of federal agencies before they are Senate-confirmed. But that is precisely what has happened here. Pendley’s tenure—and the actions the Bureau has taken, and continues to take during that tenure—violate the law.”
Bullock asked the U.S. District Court for the District of Montana to issue an injunction to block agency actions taken under Pendley. Conner Swanson, a spokesman for the U.S. Department of the Interior told _Bloomberg Law_, “This is a frivolous and politically motivated claim that has no legal standing.” Swanson said that Secretary of the Interior David Benhardt issued an order delegating the power to exercise the authority of BLM director to Pendley.


Federal Register weekly update; Trump administration has issued 35 significant final rules so far in 2020

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s regulatory activity.
From July 13 to July 17, the Federal Register grew by 1,776 pages for a year-to-date total of 43,680 pages. Over the same period in 2019 and 2018, the Federal Register reached 35,002 pages and 34,752 pages, respectively. As of July 17, the 2020 total led the 2019 total by 8,678 pages and the 2018 total by 8,928 pages.
The Federal Register hit an all-time high of 95,894 pages in 2016.
This week’s Federal Register featured the following 586 documents:
• 472 notices
• two presidential documents
• 41 proposed rules
• 71 final rules
One proposed rule aiming to amend the U.S. Department of Defense’s (DoD) nondiscrimination regulations and one final rule concerning DoD’s sexual assault prevention and response services were deemed significant under E.O. 12866—meaning that they could have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Trump administration in 2020 has issued 22 significant proposed rules, 35 significant final rules, and one significant notice as of July 17.
Not all rules issued by the Trump administration are regulatory actions. Some rules are deregulatory actions pursuant to President Trump’s (R) Executive Order 13771, which requires federal agencies to eliminate two old significant regulations for each new significant regulation issued.
Ballotpedia maintains page counts and other information about the _Federal Register_ as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.
Click here to find yearly information about additions to the Federal Register from 1936 to 2018.


Consumer Financial Protection Bureau ratifies previous actions after U.S. Supreme Court ruled agency structure unconstitutional

On July 10, the Consumer Financial Protection Bureau (CFPB) published a rule in the Federal Register ratifying several prior actions taken between 2012 and 2020. The rule came in the wake of the U.S. Supreme Court ruling in Seila Law that the agency’s structure was unconstitutional.
The new CFPB rule states that court precedent allows agencies to ratify previous agency actions to remove any residual problems that come from potential defects in those actions (in this case, actions approved by an agency leader who was not subject to sufficient presidential control). The CFPB wrote, “The Bureau is issuing this ratification out of an abundance of caution, and this ratification is not a statement that the Ratified Actions would have been invalid absent this ratification.”
The rule also claims that courts do not require agencies ratifying previous actions to repeat the entire administrative process. That means courts have not required agencies to follow the notice-and-comment rulemaking procedures found in the federal Administrative Procedure Act (APA) to ratify previous actions. The CFPB wrote that it issued this ratification rule because “uncertainty could have had a deleterious effect on the ongoing operations of the affected markets, given the significant role of the Ratified Actions in these markets. This authoritative ratification resolves that uncertainty.”
In Seila Law, the court ruled 5-4 that restrictions on the president’s ability to remove the agency’s leader violated separation of powers principles by limiting presidential control of executive power. The decision only affected part of the agency’s structure without eliminating the agency altogether.


Checks and Balances: July 2020

The Checks and Balances Letter delivers news and information from Ballotpedia’s Administrative State Project, including pivotal actions at the federal and state levels related to the separation of powers, due process and the rule of law.

This edition:

In this month’s edition of Checks and Balances, we review the U.S. Supreme Court’s decision not to end the Deferred Action for Childhood Arrivals (DACA) program; the culmination of Raymond Lucia’s eight-year challenge of the U.S. Securities and Exchange Commission (SEC); the U.S. Supreme Court’s holding that the director of the Consumer Financial Protection Bureau’s (CFPB) protections against removal by the president were unconstitutional; and new legislation that aims to make temporary regulatory suspensions due to the coronavirus pandemic permanent.

At the state level, we review updates to judicial deference practices in Mississippi and Georgia; a failed Separation of powers challenge to block a Maine ballot initiative; and the creation of a new central office for state administrative law judges (ALJs) and administrative proceedings in Indiana.

We also highlight new scholarship examining the effect of agency automation practices on the administrative state as well as new findings from Ballotpedia’s survey of all 50 state constitutions and administrative procedure acts regarding limits on who can challenge agency actions in state courts. As always, we wrap up with our Regulatory Tally, which features information about the 188 proposed rules and 281 final rules added to the Federal Register in June and OIRA’s regulatory review activity.

In Washington

Supreme Court rules DACA ended improperly; dissenting opinion argues ruling creates double standard 

  • What’s the story? The U.S. Supreme Court on June 18 ruled 5-4 in DHS v. Regents of the University of California that the U.S. Department of Homeland Security (DHS) did not properly follow Administrative Procedure Act (APA) procedures when it sought to end the Obama-era Deferred Action for Childhood Arrivals (DACA) program in 2017. DHS started the program in 2012 with a memo that itself did not follow the APA rulemaking process.
  • The court held that DHS’ decision to end DACA was arbitrary and capricious under the APA because DHS failed to analyze all of the relevant factors associated with ending the program. The court remanded the case to DHS, which can reattempt to end the program by providing a more thorough explanation for its decision.
  • Chief Justice Roberts delivered the majority opinion of the court, writing, “The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so.”
  • Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan joined the full opinion. Justice Sotomayor agreed with the majority that DHS improperly followed the APA, but argued in a separate opinion that the court should have allowed the respondents to develop claims that the agency violated the Fifth Amendment’s equal protection guarantee.
  • Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh filed dissenting opinions. Thomas’ dissent, joined by Justices Samuel Alito and Niel Gorsuch, argued that an administration should be able to rescind policies not lawfully implemented. He also claimed that the decision creates incentives for outgoing administrations to bind their successors to unlawfully created programs. An agency is now “not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration,” according to Thomas.
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Lucia settles with SEC after eight years of litigation

  • What’s the story? Raymond Lucia, the plaintiff in the 2018 U.S. Supreme Court case Lucia v. SEC, reached a settlement with the U.S. Securities and Exchange Commission (SEC) on June 17 after eight years of litigation. The settlement requires Lucia to pay a $25,000 fine and allows him to reapply for reinstatement as an investment advisor.
  • The Lucia case challenged the constitutionality of the SEC’s appointment of its administrative law judges (ALJs). The U.S. Supreme Court ruled in June 2018 that the agency’s ALJ appointments violated the Appointments Clause of the U.S. Constitution. The court found that the SEC’s ALJs are inferior officers (rather than agency employees) who must be appointed by the agency’s commissioners as required by the Appointments Clause. The court sent Lucia’s case back to the SEC for a new hearing before a different, constitutionally appointed ALJ.
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CFPB structure ruled unconstitutional, agency survives

  • What’s the story? The U.S. Supreme Court on June 29 ruled 5-4 in Seila v. Consumer Financial Protection Bureau (CFPB) that limiting the power of the president to remove the CFPB director violates the separation of powers of the U.S. Constitution. Congress created the CFPB under the 2010 Dodd-Frank Act as an independent agency with a single director who could only be removed by the president for cause.
  • The court recognized historical limitations on the president’s removal power in Humphrey’s Executor v. United States (1935) and Morrison v. Olson (1988), but refused to apply those precedents to the CFPB because, unlike the actors involved in the prior cases, the court argued the CFPB exercises significant executive power. The court also held that the unconstitutional removal restrictions could be severed from the Dodd-Frank Act—leaving the rest of the agency intact.
  • Chief Justice John Roberts delivered the opinion of the court. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh joined the first three parts of Roberts’s opinion concerning the unconstitutional removal restrictions.
  • Part IV of Roberts’ opinion, which argued in favor of severing the removal power restriction and leaving the rest of the law intact, was joined by Justices Alito and Kavanaugh and supported in a separate opinion by Justices Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor.
  • In an opinion concurring in part and dissenting in part, Justice Thomas, joined by Justice Gorsuch, agreed with the majority’s limitations on the scope of the Humphrey’s Executor precedent. However, Thomas stated that he would vote to overrule the Humphrey’s Executor precedent in a future case. He also disagreed with the decision to sever the removal restrictions, arguing that severability could exceed the scope of the judicial power by allowing judges to speculate on the legislative branch’s preferred remedy.
  • Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, wrote a separate opinion concurring with the judgment that the removal power provision was severable from the rest of the law, but dissenting from the holding that the removal power restrictions were unconstitutional. Kagan argued that the majority’s decision could stagnate the government’s ability to respond to changing circumstances.
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Legislation seeks to make coronavirus regulatory suspensions permanent

  • What’s the story? Representative Chip Roy (R-Texas) and Senator Rand Paul (R-Ky.) introduced legislation in Congress during May and June, respectively, aimed at making the temporary suspension of federal regulations due to the coronavirus pandemic permanent.
  • The Coronavirus Regulatory Repeal Act would require Congress to reaffirm any temporarily suspended regulations within 60 days of the end of the national emergency before they could take effect again.
  • In May, President Donald Trump’s (R) Executive Order 13924 directed federal administrative agency heads to determine whether regulations modified or waived during the pandemic should be repealed permanently.
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In the states

Mississippi Supreme Court reaffirms end of state-level Chevron deference; Georgia legislation to end deference to state tax agency fails to pass

  • What’s the story? The Mississippi Supreme Court on May 28 unanimously held in a tax and gambling case that a state tax statute requiring judicial deference to a state agency’s interpretation of an unclear law—a doctrine known as Chevron deference at the federal level—was unconstitutional because it prohibited the court from exercising its constitutional duty to interpret the law.
  • The court reaffirmed its 2018 ruling in King v. Mississippi Military Department, which ended the state-level Chevron deference doctrine on the grounds that the practice violated the separation of powers prescribed by the state constitution. The King decision instituted a new standard of de novo review.
  • The court further clarified in the tax case that the King decision applied to any state statute requiring the Chevron deference doctrine.
  • In Georgia, legislation that would have ended judicial deference to the state Department of Revenue’s interpretations of constitutional provisions, state statutes, and agency regulations failed to pass the state Senate in the final days of the legislative session. The state House of Representatives approved the bill by a 158-8 vote on February 18.
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Separation of powers challenge fails to block Maine ballot initiative

  • What’s the story? Cumberland County Superior Court Justice Thomas Warren on June 29 held that a Maine ballot initiative seeking to overturn a state agency decision to allow construction of a high-voltage power line can remain on the November 2020 ballot despite a separation-of-powers challenge.
  • Opponents of the initiative argued in Avangrid Networks v. Matthew Dunlap that the ballot measure violates the separation of powers provision in Article III of the Maine Constitution because it would allow Maine citizens to exercise executive authority by reversing an agency order and judicial authority by overturning a related court decision.
  • Warren held that the separation of powers challenge presented in the case was not ripe for review because the initiative might fail to pass. However, Wagner stated that “the court does not mean to suggest that the plaintiffs have not raised a significant separation of powers issue.”
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Indiana moves administrative law judges to central panel

  • What’s the story? The state of Indiana on July 1 launched the new Office of Administrative Law Proceedings (OALP) to serve a central hub for the state’s administrative law judges (ALJs) and agency adjudicative proceedings.
  • The Indiana General Assembly passed legislation in 2019 authorizing the creation of the OALP.
  • The new central office transitions ALJs away from direct employment or contractual relationships with state agencies. The OALP seeks to promote the independence of ALJs by ensuring that ALJs serve as neutral adjudicators in administrative proceedings, according to the office.
  • Twenty-seven other states centralize their ALJ corps and provide ALJs to state agencies on request. ALJs in the remaining states—and the federal government—are appointed by agency heads or hired as employees to conduct administrative proceedings at specific agencies.
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Feature section

Does agency automation contribute to a crisis of legitimacy?

New scholarship from law professors Ryan Calo and Danielle Keats Citron argues that increased automation in agency processes has resulted in inconsistent outcomes that, according to the authors, have eroded faith in agency expertise and contributed to what they call a crisis of legitimacy surrounding the administrative state. The authors claim that poor automation practices deployed by agencies have undermined the confidence in agency expertise that justifies their existence. In response, the authors propose that agencies should limit their use of automation to only those practices that deliver positive outcomes in order to retain their subject-matter expertise:

“The question we ask in this article is not how to restore the status quo ex ante given that machines have supplanted people. We ask instead whether technology obligates a fundamental reexamination of why Congress is permitted to hand off power to agencies in the first place.

The new direction we advocate is critical but ultimately constructive. We do not recommend the dissolution of the administrative state, which has turned to automation largely in response to a hostile political economy. Nor do we hope to foreclose the use of technology by state or federal agencies. Our ultimate recommendation is that agencies should consciously select technology to the extent its new affordances enhance, rather than undermine, the rationale that underpins the administrative state. This would be so even absent a looming legitimacy crisis. We observe that, far from demand a return to the status quo, new technology invites us to heighten and extend our expectations of what government can offer its citizens. Such examples exist in the literature and media; we believe they deserve greater attention and collect them here.”

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50-state survey reveals state limits on who can challenge agency actions in court

A Ballotpedia survey of all 50 state constitutions and administrative procedure acts (APAs) concluded that 42 states place limits on access to state courts to challenge agency actions.

  • 42 states limited who was eligible to appeal agency adjudication actions to a state court
  • The New Jersey Administrative Procedure Act banned third parties (those not directly denied a permit) from appealing permit decisions and blocked state agencies from making rules allowing third-party appeals
  • 33 states, 66%, had constitutions that allow anyone who suffers an injury or wrong to their person, property, or character, to have recourse in the state court system.
  • 8 states had no clear limits on who could challenge agency adjudication actions in state court (Ariz., Calif., Ill., Kan., Miss., N.H., N.J., N.Y.)

Some states limited appeals from agencies to state courts until after the plaintiffs had exhausted all available administrative remedies at the agency. Ballotpedia examined those provisions here.

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Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

OIRA’s June regulatory review activity includes:

  • Review of 56 significant regulatory actions.
  • Thirteen rules approved without changes; recommended changes to 40 proposed rules; three rules withdrawn.
  • As of June 1, 2020, OIRA’s website listed 139 regulatory actions under review.
  • Want to go deeper? 
  • Every month, Ballotpedia compiles information about regulatory reviews conducted by OIRA. To view this project, visit: Completed OIRA review of federal administrative agency rules


Federal Register weekly update; highest weekly final rule total of 2020 to date

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s regulatory activity.

From July 6 to July 10, the Federal Register grew by 1,818 pages for a year-to-date total of 41,904 pages. Over the same period in 2019 and 2018, the Federal Register reached 33,690 pages and 32,758 pages, respectively. As of July 10, the 2020 total led the 2019 total by 8,214 pages and the 2018 total by 9,146 pages.

The Federal Register hit an all-time high of 95,894 pages in 2016.

This week’s Federal Register featured the following 608 documents:
  • 470 notices
  • two presidential documents
  • 43 proposed rules
  • 93 final rules

Three final rules concerning pipelines, coal mines, and fuel-efficient vehicles were deemed significant under E.O. 12866—meaning that they could have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Trump administration in 2020 has issued 21 significant proposed rules, 34 significant final rules, and one significant notice as of July 10.

Not all rules issued by the Trump administration are regulatory actions. Some rules are deregulatory actions pursuant to President Trump’s (R) Executive Order 13771, which requires federal agencies to eliminate two old significant regulations for each new significant regulation issued.

Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.

Additional reading:
Click here to find yearly information about additions to the Federal Register from 1936 to 2018.


Mississippi Supreme Court reaffirms end of state-level Chevron deference; Georgia legislation to end deference to state tax agency fails to pass

The Mississippi Supreme Court on May 28 unanimously held in a tax and gambling case that a state tax statute requiring judicial deference to a state agency’s interpretation of an unclear law—a doctrine known as Chevron deference at the federal level—was unconstitutional because it prohibited the court from exercising its constitutional duty to interpret the law.

The court reaffirmed its 2018 ruling in King v. Mississippi Military Department, which ended the state-level Chevron deference doctrine on the grounds that the practice violated the separation of powers prescribed by the state constitution. The King decision instituted a new standard of de novo review.

The court further clarified in the tax case that the King decision applied to any state statute requiring the Chevron deference doctrine.

In Georgia, legislation that would have ended judicial deference to the state Department of Revenue’s interpretations of constitutional provisions, state statutes, and agency regulations failed to pass the state Senate in the final days of the legislative session. The state House of Representatives approved the bill by a 158-8 vote on February 18.

Additional reading:
Read more about the Georgia legislation in the March 2020 edition of Checks and Balances


Indiana moves administrative law judges to central panel

The state of Indiana on July 1 launched the new Office of Administrative Law Proceedings (OALP) to serve a central hub for the state’s administrative law judges (ALJs) and agency adjudicative proceedings.

The Indiana General Assembly passed legislation in 2019 authorizing the creation of the OALP.

The new central office transitions ALJs away from direct employment or contractual relationships with state agencies. The OALP seeks to promote the independence of ALJs by ensuring that ALJs serve as neutral adjudicators in administrative proceedings, according to the office.

Twenty-seven other states centralize their ALJ corps and provide ALJs to state agencies on request. ALJs in the remaining states—and the federal government—are appointed by agency heads or hired as employees to conduct administrative proceedings at specific agencies.

Additional reading:


U.S. Supreme Court: Agencies had authority to create religious and moral exemptions from Obamacare contraception mandate

With a 7-2 decision in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, the U.S. Supreme Court upheld religious and moral exemptions to Obamacare’s contraception mandate.

The majority opinion held that federal agencies followed proper procedures under the Administrative Procedure Act (APA) to create the exemptions, and that the Little Sisters of the Poor had standing to participate in the case. Justice Clarence Thomas delivered the opinion of the court, joined by Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh.

In his opinion, Thomas wrote, “After two decisions from this Court and multiple failed regulatory attempts, the Federal Government has arrived at a solution that exempts the Little Sisters from the source of their complicity-based concerns—the administratively imposed contraceptive mandate. We hold today that the Departments had the statutory authority to craft that exemption, as well as the contemporaneously issued moral exemption. We further hold that the rules promulgating these exemptions are free from procedural defects.”

Justice Alito wrote a concurring opinion, joined by Justice Gorsuch, arguing that the court should have also ruled that the Religious Freedom Restoration Act (RFRA) required the agencies to create the religious exemption to the contraception mandate. Because the court did not resolve that question, Alito wrote that the Little Sisters of the Poor will have a longer legal battle.

Justice Elena Kagan wrote a concurring opinion, joined by Justice Stephen Breyer, arguing that Obamacare was ambiguous with respect to the agencies authority to exempt employers from the contraception mandate, so the court should have deferred to the agencies’ interpretation of the law under the _Chevron_ doctrine. _Chevron_ says that courts must uphold reasonable interpretations of ambiguous laws offered by agencies empowered to administer those laws.

Justice Ruth Bader Ginsburg wrote a dissenting opinion, joined by Justice Sonia Sotomayor, arguing that “the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the _nth_ degree.” She wrote, “this Court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets” even though, for Ginsburg, the Free Exercise Clause of the U.S. Constitution and the Religious Freedom Restoration Act did not require that outcome.

The court sent the case back to the Third Circuit to reconsider its decision to rule against the Little Sisters of the Poor.

Additional reading:

Chevron deference (doctrine)

Click here to read the U.S. Supreme Court opinion.


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