In recent years, there has been a well-documented increase in the number and intensity of conflicts on hot-button issues like abortion, gay rights, and gender identity, and in how seriously they impact religious liberty. “Progressive” advocates on those issues have made it clear that they see religious liberty as a primary impediment to accomplishing their goals. They believe that religious liberty should always lose when there is a conflict.

Most of the attention on these conflicts has centered on legislatures and courts, especially the Supreme Court. The long and complex litigation over the HHS contraception mandate and the contentious Masterpiece Cakes case are the most prominent recent cases. Those cases ended well for religious liberty, but they represent a disturbing trend, since both began with hostile actions by the Administrative State.

What Is “the Administrative State”?

In our civics classes, we learned that there are three branches of government—judicial, legislative, and executive. Article One of the United States Constitution grants “All legislative Powers” exclusively to Congress. Article Two requires that the President “take Care that the Laws be faithfully executed.” Article Three declares that the power of the federal courts extends to “all Cases, in Law and Equity, arising under this Constitution [and] the Laws of the United States.” The existence of executive agencies is implicitly recognized in Article Two, but the Constitution does not spell out the scope of their activities.

In modern times, however, a tremendous amount of law-making authority has been delegated by legislatures to administrative agencies; in fact, the courts have granted them so much discretion that the basic structure of our government has dramatically changed. Although most of these agencies are ostensibly located within the executive branch, their permanent staff often operate as though they were an independent fourth branch.

The Administrative State acts in numerous ways.¹ Hundreds of significant formal rules are promulgated every year through a process called “notice and comment rule-making.” The agency publishes a proposed rule, receives public comments, and then promulgates the final rule. However, all the important policy decisions are often already made by the agency before giving public notice of the proposed rule, so the rest of the process is typically just artificial formalism. Yet these rules are just as binding as any act of Congress, even though no elected official has ever played a part in creating them.

And many of these regulations go far beyond the requirements of the original statutes they purport to implement. The HHS mandate shows the danger inherent in this process, since it was the creation of an agency interpretation of the term “preventive services” to include contraception and sterilization, based on a recommendation by a panel of medical consultants, even though no mention of those specific “services” appeared in the 2,000+ page Affordable Care Act.

Agencies also issue informal “Guidance” documents, “Opinion Letters” or “Bulletins.” These purport to be mere interpretations of the agency’s rules. But they often go far beyond that and are widely seen, as Justice Kagan once described them, as “essentially an end run around the notice and comment provisions.”² Although they technically aren’t legally binding, people and organizations that are being regulated conform to the amount of fear of enforcement actions or legal liability. The result is that they are de facto laws, enacted through the back door. The best-known examples are two infamous “Dear Colleague” letters from the Obama Administration Education Department, one of which imposed gender ideology on public schools and mandated how college sexual misconduct cases would be handled.³

Agencies often have secret internal interpretations of their rules that they don’t disclose to the public but apply on a case-by-case basis. You only find out about them when you ask about them or inadvertently run afoul of them. This is the stealth threat par excellence, as demonstrated in the discussion of a stealth abortion mandate below.

Agencies also have almost unlimited discretion about when and against whom to enforce their rules. They can act based on informal Guidance or Opinion Letters, or even in their secret internal interpretations. This creates an impossible tri-lemma for a conscientious objector—(a) ignore the rule and hope you won’t be noticed, (b) challenge the rule in an expensive and uphill legal battle, or (c) just surrender your rights and comply.

There’s also the problem of agencies declining to enforce laws for ideological reasons or selectively enforcing laws against particularly disfavored targets. An egregious case of this occurred in the Masterpiece Cakeshop litigation, where a Christian-owned bakery was specifically targeted for declining to create a wedding cake for a same-sex ceremony.⁴ The Supreme Court found great significance in the Commission’s failure to enforce the non-discrimination laws against bakers who declined to sell cakes with religious messages. And in a classic example of ideological non-enforcement, the Obama Administration refused to enforce the Weldon Amendment (which barred discrimination against institutions that declined to be involved in abortion), even though it was blatantly violated by a California law requiring all employers to pay for abortions in their insurance plans.⁵

The result of these various actions and inactions is that individuals and institutions are finding that many of the important decisions in our nation are being made by the Administrative State, and their lives are being affected in ways they never expected. All of these interactions between the public and the Administrative State create vulnerable points at which life and religious liberty can be threatened.

The King’s Prerogative Resurrected

The architecture of American government—the famous “separation of powers” and “checks and balances”—was designed as a rejection of the King’s prerogative, which gave him unlimited power. The entire genius of the American constitutional system is to limit the authority of government and to ensure that the government cannot exercise unaccountable authority; instead, everyone receives “due process of laws.”

However, with the expansion of the Administrative State, the King’s prerogative has made a stealthy comeback, causing particular problems for religious liberty.⁶

Thanks to the U.S. Supreme Court, there is virtually no protection available under the Free Exercise Clause of the federal Constitution. In their infamous 1990 decision in Employment Division v. Smith,⁷ the Court held that if a law is neutral on its face and generally applicable, an exemption must not be given to people or institutions whose religious beliefs are violated. That leaves very little, if any, recourse for someone aggrieved by a regulation.

Similarly, the New York State Constitution is also of no help, due to the Court of Appeals’ 2006 decision in Catholic Charities v. Serio,⁸ which rejected a religious liberty challenge to a contraception mandate. That decision bizarrely put the burden of proof on the religious claimant to show that a law is an “unreasonable burden” on his or her beliefs. This is an absurdly low standard that is used for no other constitutional right and provides very little protection for such a fundamental freedom.

The federal Religious Freedom Restoration Act (RFRA)⁹ provides some help to religious claimants, but only if they challenge a federal law. Many states have their own version of RFRA, but New York State is not one of them. Even if we had one, there is no guarantee that it would provide relief. It is worth recalling that, in the lower court decisions on the HHS mandate, the religious litigants generally lost, even though they had RFRA on their side.

Legal challenges to the Administrative State are ultimately rigged against the aggrieved party. Religious litigants typically have to appeal to the agency itself or answer a complaint before an administrative law judge—who just happens to work for the agency. So the first “judge” that a religious claimant faces is hardly neutral, and the agency’s own policies will control in the proceedings. This doubly stacks the deck against the religious litigants. If they get an adverse ruling from that “judge,” they have to appeal to the agency head—yes, the same agency that’s prosecuting them. If they try to obtain relief from a real court, they are faced with a heavy lift, because the courts give great deference to the agency’s interpretation of its statutes and regulations and to the decisions of the agency’s quasi-judicial adjudication system.

All of this protects the Administrative State from accountability and unfairly tips the scales against those who challenge it.

How This Plays Out—The Case of the Stealth Abortion Mandate

To illustrate how stealth threats from the Administrative State can play out in reality, consider the story of an actual case under litigation.¹⁰

In 2015, the Department of Financial Security of New York State, which has regulatory oversight of the insurance industry, issued “model language” for small employer health insurance policies that would require coverage of elective abortions. Prior to that date, there was absolutely no statutory or regulatory authority for any such mandate. In fact, the State Legislature had failed to enact an abortion insurance mandate for close to twenty years, but that did not stop the Department from issuing this “model language.”

It is crucial to note that the term “model language” is a misnomer. It implies that the language is optional, but in reality, it is nothing of the sort. Every health insurance plan must be acceptable to the Department. It is obviously much easier, cheaper, faster, and less risky for companies to get approval by just using the model language. As a result, the insurance companies treat the model language as de facto mandatory—it is an “offer they can’t refuse.”

When various religious organizations raised objections to this model language, they were ambushed by a stealth threat to religious liberty in one of its purest forms. The Department blithely informed the organizations that they had already been paying for abortion coverage for years, because the Department considered abortion to be “medically necessary surgery”—a standard anodyne provision of every contract. This secret private interpretation had never been made known before, even though the Department knew that the religious organizations would object. It was neither defined nor authorized in any regulation or statute. Yet religious organizations were subjected to it—surprise!

A lawsuit was then filed by the Catholic Dioceses of Albany and Ogdensburg, other Catholic and non-Catholic religious organizations, and several private parties. While the litigation was pending, the Department decided to put their position on a stronger footing, implicitly conceding that their prior efforts were improper. The Department formally proposed regulations that would explicitly impose the abortion mandate—this time, not just on small employer policies, but on all health insurance policies. Again, there was no statutory authority for this—the Department just created it out of thin air.

Astonishingly, the Department has argued that the abortion mandate was always implicit in a regulation enacted in 1972 that required insurance plans to cover medically necessary treatments. Just consider the audacity of this argument. They are saying that an abortion insurance mandate was secretly enacted through an anodyne regulation, just two years after New York passed an abortion law that was one of the most controversial bills ever considered, in the midst of an ongoing battle in the Legislature to repeal the law and to overturn a veto of the repealer, while a serious constitutional challenge to the law was making its way to the state’s highest court, while everyone was anticipating the major Supreme Court decision that came the following year—yet nobody noticed or said anything for over 40 years! Such is the arrogance of the Administrative State, which believes it can retroactively amend laws through fictitious “implicit meanings.”

As of now, the lawsuit has been dismissed and is currently on appeal. (I have submitted an amicus brief on behalf of the New York State Catholic Conference.) The reality is that it is an uphill battle against the powerful Administrative State, with unsympathetic courts and legal standards stacked against us.

Other Examples of the Administrative State’s Threats

Although the stealth abortion mandate case illustrates some of the ways in which the Administrative State can threaten life and religious liberty, there are many other examples:

• There have been ongoing battles, most notably the California law that culminated in the NIFLA v. Becerra¹¹ decision by the Supreme Court, over discriminatory and burdensome signage and disclosure requirements for pregnancy care centers.
• State agencies have tried to force Christian adoption and foster care agencies to violate their religious beliefs and place children with same sex couples. Several cases, one from Pennsylvania¹² and another from upstate New York,¹³ are currently working their way through the federal courts, on their way to the Supreme Court.
• Although the ability of religious organizations to obtain government licenses and participate in government programs has been upheld by the Supreme Court, it is under constant attack. Advocacy groups are encouraging a strategy to use local governments to advance a pro-“LGBT” agenda.¹⁴ For example, the Maryland State Education Department recently excluded a Christian school from a voucher program because of their religious beliefs about sexuality and gender.¹⁵
• The independence of religious organizations is regularly threatened with state control. New York State education authorities have attempted to take control of religious school curricula under the guise of ensuring that the schools are providing the “substantial equivalent” of public school curricula.¹⁶
• Employment decisions are subject to state interference. New York State and New York City have enacted so-called “boss bills,” which ban discrimination on the basis of “reproductive health decisions.”¹⁷ The District of Columbia and the City of St. Louis have also passed “boss bills,” and over a dozen states have had bills introduced.¹⁸ A lawsuit has already been filed in New York to prevent the Administrative State from forcing pro-life organizations to employ pro-abortion advocates and to promote pro-abortion beliefs.¹⁹
• Agencies also take it upon themselves to extend the law far beyond what legislatures have specifically enacted. Years ago, the New York State Attorney General’s Office issued a private “opinion letter”—at the request of the New York Civil Liberties Union, a committed pro-abortion advocacy group—stating that some non-doctors could perform abortions, in direct conflict with the explicit language of the statute.²⁰ The New York City Commission on Human Rights has published a detailed Guidance based on a statute that bans discrimination on the basis of “gender identity”; the Guidance includes broad and vague definitions of as many as 38 “gender identities,” coerced speech (e.g., requiring the use of a person’s “preferred pronouns”), and ruinous fines of up to $250,000 for a “willful” violation.²¹
• While the Trump Administration has issued regulations to vitalize the enforcement of federal statutes and regulations allowing health professionals and institutions to decline to participate in abortions, these regulations have been stymied by the courts, leaving conscience protection in limbo. ²²

And as we can see from across the country, “blue states” like New York are becoming increasingly aggressive in pushing agendas that endanger life and religious liberty by way of the Administrative State. This trend will certainly accelerate on the federal level if a Democrat is elected president in 2020.

What Is to Be Done?

There are certainly many ways in which regulatory agencies contribute to the common good, and it is impossible to govern such a large and diverse nation without them. But the Administrative State, if left unchecked, will continue to pose a grave threat to life and religious liberty. Elections do matter, but even if friendly forces are elected, favorable officials are appointed, and agencies issue favorable rules or revoke damaging ones, the opposing side will eventually be elected and reverse them, or hostile courts will block them. Permanent staff members of agencies are also not easily controlled by temporary political appointees. Political affiliation of government employees is well known to tilt heavily to the Left.

So what can we do? Religious and pro-life organizations must recognize that they are directly in the firing line of the Administrative State. Vigilance and activism are essential. We need lawyers who are knowledgeable in the workings of administrative law. We must be careful to scrutinize every official agency action, whether a regulation, enforcement action, or anything else. We must be wary of any informal actions, particularly Guidances, Opinion Letters, policy manuals, or bulletins that state how an agency will interpret their rules or statutes. We cannot afford to put our heads in the sand and wait for hostile enforcement actions. We must not be on the defensive but must be proactive.

This all means that we must be ready and willing to challenge agency actions whenever they threaten life or religious liberty. There are a number of pro-life and religious liberty legal centers that do this work, like Alliance Defending Freedom or Becket Fund for Religious Liberty. But we need to step up our game. The pro-abortion movement is able to instantly challenge any pro-life laws or regulations because they have abundant funding and personnel for the task. We need to emulate them in this respect.

Practically speaking, this means that we must devote real resources—time, money, and expertise—to our own proactive litigation and support other parties as amici curiae. We should form alliances with organizations like the Cato Institute and the Federalist Society, which are fighting to rein in the Administrative State by changing the way that rules are enacted and restoring authentic judicial review of agency actions. There are significant cases on this issue before the Supreme Court, and they will have a direct impact on us.

Yet, the fundamental first step is to be aware of the stealth threats to life and religious liberty from the Administrative State. We must be honest about what we are facing. The Administrative State is deeply embedded in the American system. There are powerful forces that will resist any attempt to tame it. This will be a long and hard struggle, with little or no respite. But this is where the action is for now and for the foreseeable future—and we must be proactive in fighting back.

NOTES

1. These are governed by the Administrative Procedure Act, 5 U.S.C. §§ 500 to 596. Every state has a similar law.
2. Transcript of Oral Argument at 14, Perez v. Mortgage Bankers Association, 135 S. Ct. 1199 (2015).
3. Both Guidances were rescinded by the Trump Administration. https://www.ed.gov/news/press-releases/us-secretary-education-betsy-devos-issues-statement-new-title-ix-guidance (transgender students) and https://www.ed.gov/news/press-releases/department-education-issues-new-interim-guidance-campus-sexual-misconduct (sexual misconduct cases).
4. Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018).
5. Richard M. Doerflinger, A Pledge Betrayed: The Obama Administration Nullifies Conscience Rights (June 6, 2016), https://www.thepublicdiscourse.com/2016/07/17295/. The Weldon Amendment is a provision that is passed annually as part of the appropriations process.
6. For a general overview of the dangers of modern administrative practice, see, e.g., Adam J. White, Reforming Administrative Law to Reflect Administrative Reality (2017), https://nationalaffairs.com/storage/app/uploads/public/doclib/20170111_Booklet2_chap4.pdf.
7. 494 U.S. 872 (1990).
8. 7 NY 3d 510 (2006).
9. 42 U.S.C. §§ 2000bb to 2000bb-4.
10. Roman Catholic Diocese of Albany, et al. v. Vullo, et al., No. 2070-16 (N.Y. Sup. Ct., Albany Co., Dec. 28, 2018), appeal docketed, No. 529350 (3rd Dept.).
11. 138 S. Ct. 2361 (2018).
12. Fulton v. City of Philadelphia, https://www.becketlaw.org/case/sharonell-fulton-et-al-v-city-philadelphia/.
13. New Hope Family Services v. Poole, https://www.adflegal.org/detailspages/case-details/new-hope-family-services-v.-poole.
14. See Center for American Progress, Advancing LGBTQ Equality Through Local Executive Action (2017), https://www.americanprogress.org/issues/lgbtq-rights/reports/2017/08/25/437280/advancing-lgbtq-equality-local-executive-action/.
15. Bethel Ministries v. Salmon, https://www.adflegal.org/detailspages/case-details/bethel-ministries-v.-salmon.
16. Peter Murphy, Under Assault: New York’s Private and Parochial Schools (Sept. 5, 2019), https://www.city-journal.org/new-york-substantially-equivalent-provision.
17. The State law is codified as Labor Law § 203-e. The City law was enacted as Int. No. 863-A (Jan. 20, 2019).
18. National Women’s Law Center, States Take Action to Stop Discrimination Against Women For Their Reproductive Health Care Decisions (Nov. 2019), https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2019/12/FS_BossBill.pdf.
19. Compasscare v. Cuomo, https://www.adflegal.org/detailspages/case-details/compasscare-v.-cuomo.
20. New York Civil Liberties Union, NYCLU News, Vol. LIX, No. 2 (Spring 2019), https://www.nyclu.org/sites/default/files/field_documents/nyclu_spring_newsletter_2019.pdf.
21. New York City Commission on Human Rights, Gender Identity/Gender Expression: Legal Enforcement Guidance (last updated Feb. 15, 2019), https://www1.nyc.gov/site/cchr/law/legal-guidances-gender-identity-expression.page.
22. Benjamin Weiser and Margot Sanger-Katz, Judge Voids Trump-Backed “Conscience Rule” for Health Workers (Nov. 6, 2019), https://www.nytimes.com/2019/11/06/upshot/trump-conscience-rule-overturned.html.