• The new contraception rule is procedurally flawed

    Yesterday, Dylan Scott and Sarah Kliff at Vox got their hands on a leaked version of a draft rule from HHS that, if adopted, would make it much easier for employers to drop contraception coverage for their employees. The rule is under review at the Office of Management and Budget; it could be approved any day.

    Whatever the merits of the draft rule, I’m baffled by a procedural move. It’s styled an “interim final rule,” which means that it will take effect the moment it’s published. And, as David Anderson has explained, it’ll only take a hot minute for employers who wish to take advantage of the expanded accommodation to adjust their offerings. So if you’re thinking about getting an IUD, now might be a good time to get one.

    The Administrative Procedure Act, however, requires new legislative rules to go through notice and comment before they’re adopted. It’s a cumbersome process, often taking a year or more, but it’s not optional. So what’s HHS’s justification for skipping notice and comment here?

    The agency offers two rationales, neither of which is convincing. First, the agency says that it has statutory authorization—specifically, in 26 U.S.C. §9833, 29 U.S.C. §1191c, and 42 U.S.C. §300gg-92—to skip notice and comment. (This isn’t an original claim; Obama’s HHS made it too.) But these provisions are just generic grants of rulemaking authority. They allow the Secretary to “promulgate such regulations as may be necessary or appropriate to carry out” his various responsibilities, including “any interim final rules as the Secretary determines are appropriate.”

    None of these laws relieve the Secretary of his responsibility to follow the APA, and the courts don’t read generic grants of rulemaking power to displace the APA’s background rules. If Congress had really meant to license the Secretary to ignore public participation whenever he wanted to, it would have spoken much more clearly. So yes, the Secretary can issue regulations, even interim final regulations, but only when he acts consistently with the APA.

    Second, HHS says it has “good cause” under the APA to skip notice and comment. Good cause exists when notice and comment is “impracticable, unnecessary, or contrary to the public interest.” That’s a flexible standard, but the courts have said that it “is to be narrowly construed and only reluctantly countenanced,” with its use “limited to emergency situations.”

    So what’s the emergency here? HHS’s explanation is a bit disjointed, but it points out that Obama’s HHS also issued two interim final rules relating to the contraception mandate. Now, that’s true—but only because the agency faced a tight statutory deadline and, later, a Supreme Court order in Wheaton College requiring a rule change. Those are classic reasons to find good cause. Indeed, that’s why the D.C. Circuit brushed back an earlier challenge to one of HHS’s interim final rules: “the modifications made in the interim final regulations are minor, meant only to ‘augment current regulations in light of the Supreme Court’s … order.’”

    Here, there’s no deadline and no court order requiring a rule change. (Although the Supreme Court exhorted HHS and religious organizations to resolve their differences in Zubik v. Burwell, that’s not the same thing.) What’s more, the Obama administration did invite feedback before it initially adopted its religious accommodation— and received more than 400,000 comments in response.

    In a twist, Trump’s HHS wants to exploit that deluge of comments, as well as hundreds of thousands of other comments on Obama-era proposals, to justify changing the accommodation without public feedback. “Millions of public comments have already been submitted on the scope of the guidelines,” says HHS, “including the issue of whether to expand the exemptions.”

    If this new rule was just a minor tweak of the prior accommodation, HHS’s explanation might hold water. But it isn’t. The rule breaks with prior law in at least three big ways. First, it extends the accommodation any and all organizations, not just to religious nonprofits (like Catholic hospitals and universities) and privately held corporations (like Hobby Lobby). Second, it allows employers to drop contraception coverage without filing federal paperwork, potentially complicating efforts to guarantee alternative coverage for employees. Third, unspecified “moral” objections—not just religious ones—are now enough to justify relieving employers of their statutory obligations under the ACA.

    HHS may have received millions of comments about contraception, but it hasn’t received focused feedback on these specific proposals. That’s likely to be a problem in court. The D.C. Circuit, in particular, can be really persnickety when agencies don’t provide adequate notice of a proposed change, even where earlier rounds of notice and comment seem to cover the issue. (I’ve been critical of the case law around good cause, and I have some sympathy with HHS’s position here. But the law is what it is.)

    At the end of the day, HHS’s justification boils down to a concern with “delay[ing] the ability of [employers] to avail themselves of the relief afforded by these interim final rules” and “further extending the uncertainty caused by years of litigation and regulatory changes.” But that’s just another way of saying that the rule is so important that it has to be rushed out the door without hearing what the public has to say about it.

    That’s not how it works. That’s not how any of this works. Notice and comment always causes the delay of important rules. Notice and comment always extends any existing uncertainty. And yet the APA still requires public feedback. If the administration is really concerned about avoiding protracted litigation, why invite a lawsuit over a procedural question? Where’s the fire?

    @nicholas_bagley

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