Cardinal calls on President Trump to fulfill promise to end HHS mandate [CWN]

[CWN_News]

The president of the United States Conference of Catholic Bishops called upon President Donald Trump to fulfill his promises to end the HHS mandate.

More…

 

[twf]

Wonder what the hold up is. Trump supporters here on CAF have been going on about the strides Trump has taken to protect the Church.

 

[Stylteralmaldo]

Isn’t the HHS mandate codified in Law? Certainly Congress could pass a law specific to the HHS mandate? Certainly there are enough Republicans in both Houses to make this happen and certainly President Trump would sign such a change in the law.

If this doesn’t get done by the 2018 elections, there’s no sense voting for Catholic causes to be quite honest.

 

[J_Peterson]

Isn’t the HHS mandate codified in Law? Certainly Congress could pass a law specific to the HHS mandate? Certainly there are enough Republicans in both Houses to make this happen and certainly President Trump would sign such a change in the law.

If this doesn’t get done by the 2018 elections, there’s no sense voting for Catholic causes to be quite honest.

The HHS mandate isn’t written into the law. My understanding is that he can put an end to it at any point.

 

[Michael1978]

He signed an executive order on May 4th directing HHS to draft a rule for religious exemptions to the mandate. A draft rule was proposed on May 23rd for review. I’m not sure how the process works, but it’s been two and half months since the rule was submitted. That doesn’t seem like an unreasonable amount of time considering how government bureaucracy works.

 

[Stylteralmaldo]

The HHS mandate isn’t written into the law. My understanding is that he can put an end to it at any point.

My own understanding would become clearer if someone with knowledge on the subject could post a link to the wording of the executive order in question.

 

[M-Dent]

My own understanding would become clearer if someone with knowledge on the subject could post a link to the wording of the executive order in question.

The precise wording of the executive order requires interpreting a bit of legalese.

 

[M-Dent]

Presidential Executive Order Promoting Free Speech and Religious Liberty

EXECUTIVE ORDER

---

PROMOTING FREE SPEECH AND RELIGIOUS LIBERTY

By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to guide the executive branch in formulating and implementing policies with implications for the religious liberty of persons and organizations in America, and to further compliance with the Constitution and with applicable statutes and Presidential Directives, it is hereby ordered as follows:

Section 1. Policy. It shall be the policy of the executive branch to vigorously enforce Federal law’s robust protections for religious freedom. The Founders envisioned a Nation in which religious voices and views were integral to a vibrant public square, and in which religious people and institutions were free to practice their faith without fear of discrimination or retaliation by the Federal Government. For that reason, the United States Constitution enshrines and protects the fundamental right to religious liberty as Americans’ first freedom. Federal law protects the freedom of Americans and their organizations to exercise religion and participate fully in civic life without undue interference by the Federal Government. The executive branch will honor and enforce those protections.

Sec. 2. Respecting Religious and Political Speech. All executive departments and agencies (agencies) shall, to the greatest extent practicable and to the extent permitted by law, respect and protect the freedom of persons and organizations to engage in religious and political speech. In particular, the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury. As used in this section, the term “adverse action” means the imposition of any tax or tax penalty; the delay or denial of tax-exempt status; the disallowance of tax deductions for contributions made to entities exempted from taxation under section 501(c)(3) of title 26, United States Code; or any other action that makes unavailable or denies any tax deduction, exemption, credit, or benefit.

Sec. 3. Conscience Protections with Respect to Preventive-Care Mandate. The Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services shall consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under section 300gg-13(a)(4) of title 42, United States Code.

Sec. 4. Religious Liberty Guidance. In order to guide all agencies in complying with relevant Federal law, the Attorney General shall, as appropriate, issue guidance interpreting religious liberty protections in Federal law.

Sec. 5. Severability. If any provision of this order, or the application of any provision to any individual or circumstance, is held to be invalid, the remainder of this order and the application of its other provisions to any other individuals or circumstances shall not be affected thereby.

Sec. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

DONALD J. TRUMP

whitehouse.gov/the-press-office/2017/05/04/presidential-executive-order-promoting-free-speech-and-religious-liberty

 

[M-Dent]

The immediate reply in May from Tom Price HHS Sec.

Secretary Price Welcomes Opportunity to Reexamine Contraception Mandate

Today, Health and Human Services Secretary Tom Price, M.D., issued the following statement regarding President Trump’s executive order on religious freedom:

“Religious liberty is our country’s first freedom. Americans of faith play a vital role in caring for our most vulnerable citizens, including the elderly and the poor.

“We welcome today’s executive order directing the Department of Health and Human Services to reexamine the previous administration’s interpretation of the Affordable Care Act’s preventive services mandate, and commend President Trump for taking a strong stand for religious liberty.

“We will be taking action in short order to follow the President’s instruction to safeguard the deeply held religious beliefs of Americans who provide health insurance to their employees.

hhs.gov/about/news/2017/05/04/secretary-price-welcomes-opportunity-to-reexamine-contraception-mandate.html

 

[M-Dent]

If this article in the LA Times is accurate it could explain the delay in changing the mandate. If this article is inaccurate, and this Admin could make an immediate change - it’s a big letdown. Frankly, I am not sure which it is.

Trump’s rollback of birth control rights will run into a legal buzzsaw

The White House wants it to go into effect immediately with its publication in the Federal Register. That’s a violation of the law—specifically the Administrative Procedures Act, which requires that such rules be subject to notice and public comment before they’re adopted.

“It’s a cumbersome process, often taking a year or more,” Bagley observes, “but it’s not optional.” That will make the rule change vulnerable to legal attack.

The administration tries to circumvent this process by arguing, first, that the administrative process can be avoided when notice and comment is “impracticable, unnecessary, or contrary to the public interest.” It also argues that the change is trivial, so it should be covered by the “millions of public comments” already submitted on the contraceptive mandate, “including the issue of whether to expand the exemptions.”

Bagley predicts that courts examining these excuses will say, “No dice.” The “impracticability” exemption typically applies when an emergency or court deadline requires a rule change. “What’s the emergency here?”

latimes.com/business/hiltzik/la-fi-hiltzik-contraception-20170601-story.html

 

[tseleehw]

Yes, that LA Times article is largely accurate. All proposed regulations and rule changes have to go through a strictly defined process, including a public comment period (usually 60 days but sometimes longer for 90 days). As far as I know, the proposed changes to the rule have not been submitted to the Federal Register (if someone has this please post a link) so unfortunately we are likely still quite some time away from having a new rule in effect.

The mandate cannot be ended overnight, and if Trump or HHS attempted to do so, it would likely be challenged in court, and they probably would not win. So they are better off if they just follow the process. The Executive Order from Trump was more of a general “religious freedom” directive aimed at getting the various departments to give preference to religious freedom concerns when drafting regulations and is the basis for HHS changing this rule, but it isn’t an order specifically targeted at any one regulation or rule.

So unfortunately the good Cardinal will just have to be patient. I would think that the Department of Justice would either drop their case against the Little Sisters of the Poor or ask for delays until the new rule is finalized, so no harm should be done in the meantime. I was able to find a leaked draft of the new rule in various news stories but I can’t find anything on whether or not it has been submitted for public comment so I think it will still be some time. Hopefully they do get things going though if they haven’t already.

 

[Stylteralmaldo]

M-Dent:
I appreciate the link to President Trump’s executive order. The impression I have is that the HHS mandate itself (issued by Obama) is an executive order. That’s the executive order I would like to see.

If the HHS mandate was something that was signed into law by Obama, my presumption would be that the only way to undo the HHS mandate would be to revoke at least that part of the law. That would take an act of Congress I would think.

Of course, the President could also decide not to enforce the law. That’s not unheard of if the previous administration is any indicator.

 

[tseleehw]

I appreciate the link to President Trump’s executive order. The impression I have is that the HHS mandate itself (issued by Obama) is an executive order. That’s the executive order I would like to see.

If the HHS mandate was something that was signed into law by Obama, my presumption would be that the only way to undo the HHS mandate would be to revoke at least that part of the law. That would take an act of Congress I would think.

Of course, the President could also decide not to enforce the law. That’s not unheard of if the previous administration is any indicator.

The HHS mandate was a federal rule/regulation that was written by HHS (mainly the brainchild of Kathleen Sebelius, the former HHS secretary back then when the ACA was passed). HHS had the authority to write the rule based on the text of the ACA - for more information on this process you can see this link: federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf.

So basically, it’s not something that can be changed with the stroke of a pen; you have to go through the process again to change it (unless the law itself is changed, which doesn’t look like it’s happening any time soon). Of course, rules such as these have to operate within the framework of existing laws and the constitution (which is how the Little Sisters of the Poor are challenging it in court).

The LA Times article hints that the Trump administration could claim that changing the rule constitutes an “emergency”, which would speed up the process to changing the mandate, but it would almost certainly run into a court challenge, which would further slow the process. IMO, they would be better off just following the process to avoid this (unlike the travel ban court cases, where the Trump Administration had the legal high ground, despite the ideologically driven decisions of the lower courts, they probably wouldn’t have a winning case on this issue).

I remember back when the ACA was passed, and several Catholic bishops supported its passage. Yet, many Catholic journalists were warning that the ACA would lead to infringement on the Church’s beliefs and restrictions on their religious freedom. Then when the rule on contraception came out, a lot of bishops who had publicly supported the passage of the ACA had to do an about-face and join in the lawsuit against the government on behalf of the Little Sisters of the Poor. The only reason they might get a reprieve for now is because Trump was elected, otherwise the Little Sisters would have been doomed when Clinton would have appointed a new justice to the Supreme Court. They should also be thanking the Senate Republicans who blocked Merrick Garland’s confirmation last year, otherwise it would have been the same outcome.

 

[J_Peterson]

My own understanding would become clearer if someone with knowledge on the subject could post a link to the wording of the executive order in question.

Here is the law. Search for contraception and find where it’s mandated by the Affordable Care Act. It’s not in there.

hhs.gov/sites/default/files/ppacacon.pdf