(Religious) Liberty in the Administrative State

Connor Ewing: Lost in the controversy over the birth control mandate is the fact that such decisions are even possible. That’s what is most concerning.

The most interesting thing about the ongoing birth control mandate kerfuffle is not the widespread, near-instant opposition set off by the administration’s directive. Nor is it the utter temerity of its subsequent “accommodation.” Rather, it is the pervasive silence about the possibility that decisions of that kind can be made in the first place.

Consider the standard objection to the mandate: Compulsory provision of birth control violates the religious freedom of insurance providers opposed to those services. Therefore, some other way of providing birth control must be found, a way that doesn’t violate religious scruples. Most criticisms of the Health and Human Services (HHS) rule were variations on this theme. The decision was wrong, and a new way forward must be found.

Few people took a step back to consider how this decision was made. The vast majority of those who objected to the directive took for granted the legitimacy of that kind of decision—they opposed the substance, not the procedure. That procedure is administrative rule-making, the process by which government agencies make regulations pursuant to congressional statutes. Made by political appointees and the agencies they lead, these decisions are insulated from direct democratic accountability. Often called the “Fourth Branch,” the network of agencies that compose the administrative state sits uneasily alongside the three branches of government set forth in the Constitution.

In the case of the birth control directive, HHS Secretary Sebelius decided, apparently with limited external consultation, that the “preventive health services” that insurance plans must cover included contraception. Just as this regulatory decision inverted the relationship between government and institutions of civil society—Catholic charities are wards of the state that serve at its leisure and by its rules—administrative rule-making inverts the direction of democratic law making. No longer does the constitutionally prescribed process apply. Indeed, no longer is legislation finalized by the President’s pen (or Congress overriding his veto). Even when an administrative regulation is announced there is no certainty, because that administration will change and with it many of the rules it made.

The birth control mandate revealed a clash of priorities, weighted differently by the parties involved. On the one hand, there is the religious freedom of insurance-providing employers; on the other, there is a particular health care service—that it is birth control is irrelevant to my point. Normally, this conflict would be resolved by the legislative process. A bill would be proposed and its merits debated; congressmen would be lobbied by various interest groups and constituencies, and a vote would ultimately be taken. Not so with administrative decisions. As we’ve seen, all it takes is statutory language ambiguous enough to bear some bureaucratic interpretation.

This is not to say that administrative discretion should be done away with. Indeed, that’s practically impossible and, what’s more, undesirable. Administrative rule-making is a fact of modern governance and can play a beneficial role in necessary regulation. Certain legislation must cover myriad and unknown circumstances, and it is not within the capacity of a legislature to make specific determinations on every contingency to which a piece of legislation applies. But the important question is, which decisions should be left to administrative discretion? To put a finer point on it, in a constitutional democracy which decisions are to be removed from the democratic process? This is a hard question, not least because the answer would apply to issues ranging from health care to environmental regulation.

The best rule I can think of would be something like the following: Administrative discretion should apply to all of the decisions I’d be willing to let my political opponent make. Under such a rule, the most partisan issues would remain in the democratic process because no one would want to surrender control of them without a fight. Decisions on these issues could be made only when there has been a chance for input from all sides, and only if there is an opportunity for contestation down the road. Most important, decisions on these issues would be legitimate because they would be the result of the authoritative process by which law is made.

The point is that under a rule like this the most important decisions—those concerning divisive questions and individual or associational liberties—would be subject to the utmost scrutiny and, when decided, benefit from the utmost legitimacy. That is how democracies should make decisions, and that is how liberty is safeguarded.

All of this brings to mind then-Speaker Pelosi’s much derided claim about the pressing need to pass the health care bill. “We have to pass the bill so you can find out what is in it.” As the past few weeks have shown, this was not only an argument for political expediency. It was a claim of ignorance. And it applies to all legislation that entails significant bureaucratic discretion. In the administrative state all we can say is what a law might do, and that possibility depends on the whim of the state. For a country whose rallying cry was once consensual governance and the protection of liberty, this is a sorry state of affairs.


  • February 17, 2012

    Alberto Hurtado

    Connor, how does the prudence of your “administrative discretion” rule line up with the theory of power proposed primarily by Hamilton and Madison in the Federalist? That is, one of their arguments centered that a power given should be given to the fullest extent of that power. Why? Because the only real check on a power given is a specific limit on that power, whether by circumscribing its reach or by proscribing its specific abilities. It seems relying on the “good will” of your political opponents is not a very prudent rule for a number of reasons. The most compelling seems to be sheet political inertia. Once a decision is made it is much more costly to reverse that decision ex post than it was to achieve the consensus ex ante. So, that will likely encourage me to make as many administrative decision as I can as quickly as possible knowing that the cost of my opponents in reversing those decision will be higher than my cost in achieving them.

    So, I’d rather take your rule, flip it and move it up a level in the process: don’t give/grant an administrative power unless you are willing to have it used nefariously against you.

  • February 17, 2012

    Bryan Wandel

    You frame the HHS administrative decision as insulated from the democratic process. But doesn’t that assume the executive branch is outside of the democratic process? That the enactments of Congress are the narrow definition of democratic activity? I mean, it’s a Democratic policy in a Democratic administration, acting within the scope of Affordable Care Act. Even the ceded administrative authority (by Congress) can be recouped.

  • February 17, 2012

    A Reader