There is no “Employer Mandate”

federal law does not impose a legal duty on large employers to offer their employees access to a health insurance plan

Eugene Volokh provided a series of posts at his blog concerning the legal arguments arising in the contraceptive mandate cases up for Supreme Court review. His libertarian leanings colored his analysis somewhat though the effort as a whole was impressive. Marty Lederman (he praised EV's work, in part noting it was "herculean"), who leans more progressive, provides his own analysis.  The whole thing reminds me of cases where I have so much to say regarding some viewpoint that it's hard to be truly comprehensive.  The verbose nature of the posts underline it.

I find the argument against the mandate in these cases specious on the merits. When some private non-profit refuses to include contraceptives as part of its health insurance plan, I think it mean and stupid -- of all things to deny students from a diverse set of views, e.g., you pick this?  When it is for-profit employers, corporate or no, it is just wrong.  U.S. v. Lee, to me, decides this case. RFRA claim? RFRA is supposed to revert federal policy back to the days of Lee.   It's depressing that this is a real issue.

Lederman reminds us of something that brings me back to how you can attack something multiple ways. In the link provided, he notes that employers don't actually have to provide insurance. The law advances affordable health care in various ways, including giving an incentive to employers to provide insurance benefits. Yes, they are taxed if they don't -- as one court summarized, the law:

leaves large employers with a choice for complying with the law—provide adequate, affordable health coverage to employees or pay a tax.”

As Lederman notes, this does sound familiar. Hobby Lobby and Conestoga Wood want to have their cake and eat it too.   They want to provide insurance of their liking but not pay the tax. Lee nixes that even when a solitary employer wants to do it.  And, the employer there didn't even have a choice -- the Amish employer wanted to provide social insurance to replace Social Security, which like ACA, is a type of federal social welfare program that some people morally or otherwise oppose in part or in whole.  As Stevens noted in his concurrence, realistically, the feds probably would save money in the long run. But, he wasn't given the option. HERE an employer has more choices. Like ACA ironically being opposed even though it is more free market friendly than some liberals might wish, this underlines the shallowness of the claim here.

This issue was flagged by a few comments over at Volokh Conspiracy though Prof. Volokh does not seem to have appropriately covered it (to be fair, he covered a lot).  I myself responded and noted that it only takes us so far. Lederman deals with the basic objections that to me seemed possible -- not including the insurance could put them at a disadvantage and they might morally think it appropriate. He argues that the parties here have the burden to show the former and doesn't really do so -- any "marginal" burden here is not substantial enough. Lederman doubts the second claim was seriously made but I'm not quite as sure there. Still, the same basic things didn't save Lee.  So, the end result is the same.

Lederman frames things in a powerful fashion -- a major talking point is that the government is trying to force the employers to violate their religious beliefs by providing contraceptive coverage. They are not. I don't know really if paying the tax and using other methods to ensure their employers will have insurance (cited by Lederman) actually net is cheaper. At the very least, opponents have more of a burden to show that. And, if paying a tax in lieu of being involved in the program is a problem, why stop here? Medicaid taxes, e.g., can cover abortion (not merely drugs that statistically might have a tiny chance of stopping implantation of fertilized eggs; something is clearly "abortion") in cases of rape. Some people find that sinful. Do they get to not pay if provide insurance that doesn't cover such things?  Go down the line for a range of programs.

This is but a different hook of something that underlines the specious nature of these claims. They have to be selective, singling out certain things (a type of de facto establishment), things that turn out to be tangential burdens at that,* or knock down lots of things. Such was a core point of U.S. v. Lee.  The bogus framing has to be answered.

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* A video on abortion rights for prisoners led me to an opinion that underlines the point. The opinion explains how an earlier one held that a state law against "assisting" abortions did not include driving people to a clinic to obtain them. It has to be more direct.

Providing an insurance package with a benefit that might be used in a way you deem immoral is less direct than that. Finally, as to "substantial burden," perhaps the abortion context is useful there as a whole.  Seems a bit less weak than the discussion by Prof. Volokh suggests -- then again, many think "undue" burden is applied too strictly against women.