President Obama’s decision to delay the implementation of Obamacare’s employer mandate gives no relief to Christian business owners who object to providing contraception to employees as required by the Health and Human Services mandate, which remains in effect and on pace to reach the U.S. Supreme Court in the midst of the 2014 midterm elections.
The delay of the employer mandate does not affect religious people who oppose the HHS mandate. “They’re going to be subject to a different penalty,” Kyle Duncan of The Becket Fund for Religious Liberty, which is challenging the constitutionality of the mandate on behalf of a private company, Hobby Lobby, told the Washington Examiner. “Not the $2,000 per employee penalty that the administration has said it’s going to suspend for the year, but the $100 per employee, per day, IRS excise tax which is in a different section of the IRS code, but the administration has not said they’re going to suspend that.”
Duncan explained that “the reporting requirements that trigger the excise tax, those are different reporting requirements under different Treasury regulations; they predate the Affordable Care Act altogether.”
Michael Cannon, the Cato Institute’s health care policy expert, agreed with Duncan’s assessment. “It’s not that the Obama administration is unwilling to relax onerous mandates on employers,” he noted in an email to the Examiner. “They just don’t think religious freedom is a good enough reason.”
Will five Supreme Court justices agree with the president? He might find out next year. Between a circuit court decision last week and the Obama team’s decision to continue implementing the regulation, the court could issue a ruling on the mandate as early as mid-summer.
“What the 10th Circuit did is resolve all the outstanding legal questions. All the disputed legal questions — can a for-profit business exercise religion under the First Amendment? Is it a person under the Religious Freedom Restoration Act? Is it a substantial burden to force someone to cover these drugs in their insurance? — the 10th Circuit decided all those as a matter of law,” Duncan said. “So, those are done.”
The Justice Department has three months to ask the Supreme Court review. “When the government takes a big loss on a major regulation, I would think they would seek review,” Duncan said, calculating that the deadline to request the review passes in late September. He added that If the Supreme Court agrees to hear the case, oral arguments could take place during the winter (the oral arguments pertaining to the lawsuit challenging Obamacare took place in March of the court’s 2012 session) and a ruling could come down by June of next year.
At that point, of course, the 2014 general elections would be heating up.