Conservatives and voters of faith had good reason to rejoice after the 2016 election. Donald Trump had promised to end policies that infringed on freedom of religious expression, where Hillary Clinton had promised to not just maintain Barack Obama’s policies but intensify them. Religious groups such as the Little Sisters of the Poor would finally be free of government harassment over contraception coverage that violated their religious beliefs.
Or so we thought. At least thus far, the Trump administration has continued to pursue legal action against religious groups to enforce the HHS contraception mandate, even though Trump himself castigated the regulation as “onerous,” and hostile to religious liberty. The easiest course of action would be to simply withdraw, reports Tim Carney at the Washington Examiner, who wonders why Trump’s team hasn’t made that choice:
Nearly 100 days into the Trump administration, the official position of the federal government is still that Uncle Sam can force private employers, against their conscience and their religious beliefs, to provide insurance coverage for all forms of contraception, including sterilization and morning-after drugs that can act as abortifacients.
On Monday, the Department of Justice — under the control of Attorney General Jeff Sessions — effectively asked federal courts to keep alive its defense of the Obama position that Christian colleges must provide such coverage. This is irreconcilable with President Trump’s professed opposition to the mandate and its trampling of religious liberty. …
In Becket’s case of East Texas Baptist University and Houston Baptist University v. Price, there’s an easy path: Trump’s DOJ should simply drop its appeal. Thanks to the Supreme Court’s 2016 ruling, the district court’s judgment—in the colleges’ favor—is the operative ruling. The stay expired Monday, and the Trump DOJ should have simply dropped its appeal. This course of action would solve the problem in every case where the religious plaintiffs had won and the Obama administration was appealing that judgment.
That didn’t happen, though. On Tuesday, the Justice Department asked the Fifth Circuit to extend the stay for 60 days, and thus keep alive DOJ’s appeal. Why? It’s a mystery.
To Carney, it’s not actually all that much of a mystery. The Trump administration has been slow to fill important leadership slots in all of its Cabinet departments, including the DoJ, which has left career prosecutors in charge of strategic decisions. These tend to be liberals, and they continue to pursue the policies of Barack Obama in the power vacuum left by Trump. In fact, the same two attorneys remain in the lead for the case noted above.
Interestingly, the DoJ itself blamed the staffing issue in its court filings when it asked for continuances in the cases, rather than withdraw:
In their filing, the DOJ put forward the newness of the administration, as well as the complexity of the case, as reasons for requesting the 60-day extension.
“The new Administration has been in place for only a few months,” the DOJ wrote to the Court, pointing out that the regulations at issue are “jointly administered by three Departments” that haven’t been fully staffed under the new administration. “The issues presented by the Supreme Court’s remand order are complex; for example, the original accommodation took more than a year to develop with input from interested parties.”
The attorneys for these groups aren’t impressed:
The DOJ’s decision to prolong the case, essentially picking up where the Obama administration left off, has puzzled conservatives.
The DOJ’s actions “[seem] to be very contrary to what they’ve been saying publicly,” Eric Rassbach, an attorney for Becket Law (formerly the Becket Fund for Religious Freedom), told The Washington Post.
Why not just kill the mandate and be done with it? That would certainly moot all of these legal actions, but it’s easier said than done. Then-Secretary Kathleen Sebelius promulgated it as a regulation, complete with comment period, as part of her wide-ranging authority under the Affordable Care Act to set coverage requirements. It would take a full regulatory cycle to overturn it. However, unless the news media has altogether missed it, new HHS Secretary Tom Price has not even started the clock on repealing the contraception mandate, and he’s been in office for almost three months now. Price was Phase 2 in the ObamaCare repeal plan, and the AHCA was Phase 1, but he could have started the deregulatory process ahead of the passage of AHCA.
Trump got elected to disrupt the status quo. So far, though, the status quo still seems to be winning … or at best, the Trump administration hasn’t caught up to the bureaucratic inertia of the Washington establishment. If they want to beat the “administrative state,” the White House had better pick up the pace of its hiring, and its discipline.