Even if some employers have to pay more under the 4980H(a) tax, would that be sufficient to show a substantial burden? In Braunfeld v. Brown, the Court held that laws may indirectly burden religious believers even when they impose "some financial sacrifice in order to observe their religious beliefs."
I'm not saying Braunfeld is fully analogous. The Sunday closing law did not require Orthodox Jews to violate their religious beliefs, but that law did make it more expensive for them to compete with businesses that opened on Saturday. (The Court also noted the state could have exempted Orthodox Jews from the closing law but did not, even though other states did offer such an exemption.) Braunfeld might support Marty's argument. The government provides an option to all employers: (1) pay a tax, or (2) provide coverage. If (1) doesn't burden religion, and even if it's somewhat more expensive, Braunfeld seems to contemplate that laws will sometimes work in this way. Provided a law doesn't directly compel anyone to violate their religious beliefs, its imposition of additional costs on religious practice is not sufficient to show a substantial burden. Marty didn't cite Braunfeld in his post, so maybe he wouldn't rely on it. And maybe there are other problems with the analogy, but I wonder if the "no employer mandate" argument turns on an empirical claim, at least if the cost differentials are not so significant as to be tantamount to coercion -- as in the 4980D tax for failing to comply with coverage requirements. On Dec 17, 2013, at 9:10 PM, Volokh, Eugene wrote: > The heart of Marty’s argument (I focus for now on item 1 below) is, I think, > an empirical claim: Large employers such as Hobby Lobby would be better off > just dropping coverage, paying the $2000/employee/year tax, “us[ing] some of > [the] enormous cost savings” to compensate employees for the lost coverage, > thus keeping the employees happy, and then pocketing the rest of the > “enormous cost savings.” (Indeed, if employees grumble over the > inconvenience or just the change, the employers can split some of the rest of > the enormous cost savings with the employees -- a win-win proposition for > employers and employees.) And, if Marty is right, this would be true for > employers generally, not just religious employers. We should thus expect a > large fraction of savvy employers to take advantage of this option, purely > out of respect for Mammon quite regardless of God. > > But I wonder whether this is empirically likely to be true, given not just > the nondeductibility of the tax, but also other factors, such as payroll > taxes on the compensation payment to the employees. It’s not surprising that > the Justice Department hasn’t made this argument, since the Administration > has long argued (unless I’m mistaken) that large employers won’t drop > employer-based health insurance. And the Congressional Budget > Office,http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/121xx/doc12119/03-30-healthcarelegislation.pdf, > likewise took the view that only a tiny percentage of employers would drop > their health insurance, because “the legislation leaves in place substantial > financial advantages for many people to receive insurance coverage through > their employers, and it provides some new incentives for employers to offer > insurance coverage to their employees.” > > Now of course that was in 2011, and perhaps the analysis today would be > different. But the CBO’s estimates still give me pause. And if the CBO is > right, and large employers generally would lose financially -- rather than > gain from capturing some of the “enormous cost savings” -- by dropping health > insurance and adequately compensating employees, then I would think Hobby > Lobby and others would be in the same position. The mandate, even enforced > as a tax, thus would be a substantial burden. > > Am I mistaken in this? Marty, do you have any pointers to studies that > support your sense of the money flows on this, and contradict what I see as > the CBO’s view? > > Eugene > > > Marty writes: > > 1. On your first point, even if the 4980H(a) tax were the equivalent of a > $3000 assessment (because it's paid with after-tax dollars), the average cost > for providing health insurance to employees is, as I understand it, closer to > $10,000, so the employer would save about $7000 per employee. (In any event, > there are no allegations in these cases that HL or CW is significantly > differently situated than a typical employer, e.g., that they have a > workforce comprised of almost all single employees with no family coverage.) > > In order to remain competitive for recruiting or retaining most of their > employees, the plaintiffs wouldn't have to kick in any extra money in salary, > because the employees would have their exchange-purchased plans subsidized by > the federal government (both in terms of the cost-savings realized by virtue > of the exchanges themselves as well as the government's premium tax credits > and cost-sharing reductions. To be sure, some of their more well-compensated > employees might have paid less in premiums for the HL plan than they would to > purchase a plan on the exchange (maybe -- again, there's no allegation or > evidence of that here). But to make up that hypothetical shortfall, and > attract those employees, HL need only use some of its enormous cost savings > to sweeten their salaries. (This is presumably what the many large employers > who do not provide plans will do.) > > For all these reasons, it is difficult to imagine HL or CW --or, more to the > point, the average large employer -- being financially worse off if it pays > the assessment. (And again, there's no allegation of facts that would alter > that conclusion here, in any event.) > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are posted; > people can read the Web archives; and list members can (rightly or wrongly) > forward the messages to others.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
