Kelley v. Becerra, the Preventive Care Mandate and the Major Questions Doctrine
For nearly a decade, the courts have been hearing challenges to the Affordable Care Act’s contraceptive mandate. But, if you read the bill, there is no actual “contraceptive mandate.” (Nor is there any provision called the “individual mandate.”) Rather, the bill requires insurers to provide “preventive care.” The ACA did not actually define what “prevent care” consists of. Rather, that decision was delegated to an agency.
I have long argued that this delegation is suspect. In 2020, I advanced a related position before the Supreme Court in Little Sisters of The Poor v. United States. We argued that the ACA did not delegate the authority to create the Obama Administration’s initial “accommodation.” Our brief was premised on the non-delegation doctrine, as well as the major question doctrine. Here is an excerpt from the introduction:
At base, the ACA did not delegate the authority to draw that arbitrary distinction and resolve this “major question.” The fact that the rulemaking here was premised not on health, financial, or labor-related criteria, but on subjective determinations of which employees more closely adhere to their employers’ religious views, “confirms that the authority claimed by” the agencies “is beyond [their] expertise and incongruous with the statutory purposes and design.” Gonzales v. Oregon, 546 U.S. 243, 267 (2006). If “Congress wished to assign that question to an agency, it surely would have done so expressly.” Id.
Had Congress intended to give the Departments discretion to decide which religious institutions should be subject to the mandate, it would have legislated to that effect. “It is especially unlikely that Congress would have delegated this decisio
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