Re: Are large employers really better off dropping health insurance?
The holidays have made it difficult to keep up but I did want to respond to Michael. The notion that the distinguishing of Sherbert and Yoder were pure legal fictions in Smith is unpersuasive.With respect to Sherbert, the Court's reasoning is actually accurate and reflects the Court's understanding of Smith as a case of first impression as the Justice's Conference notes show. The distinguishing of Yoder is unpersuasive but it appears the Court was reinforcing what Yoder was until RFRA -- an outlier. Literally the only case to apply strict scrutiny to a neutral, generally applicable law, with little or no precedential value. Its value is even more questionable today when children's interests would have to be taken into account and, therefore, Douglass's view would likely change the result, especially now that we have strong evidence of the harm done to Amish children by the failure to educate them. All of this matters, because it is my view that RFRA in these cases is as unconstitutional as it was in Boerne. The Court did not limit its reasoning to state law and relied explicitly on separation of powers. Politics, not the Court, transformed Boerne into a decision only relevant to state law.As I have said before, and may have missed either Eugene's or Marty's responses over the holiday, their debate is one the courts are ill-suited to decide. If the Court takes this approach, the mandate cases will be an excellent example of how RFRA turns courts into legislatures and makes them lawmakers (in the tradition actually of the Lochner cases where strict scrutiny was employed to permit the courts to second guess employment laws), without the competence to do so. The problem of course is that the DOJ has failed to attack RFRA's constitutionality but that is, once again, politics, not constitutional analysis. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 18, 2013, at 4:54 PM, Michael Worley wrote: > You have a fair point; I'm uncomfortable with Reynolds, but that doesn't > mean there weren't less protections for religion pre-incorporation. However, > the distinguishing of Yoder and Sherbert (not to mention Cantwell) in Smith > is just a legal fiction Scalia made up. The Law Review article by James D. > Gordon III "Free exercise on the Mountaintop" illustrates well the problems > with the theory that Smith was right > > > On Wed, Dec 18, 2013 at 2:37 PM, Marci Hamilton wrote: >> This reasoning is based on the mythology created around the free exercise >> clause by the reactions to Smith and the misrepresentations about the >> doctrine to Congress. It is quite remarkable this many years later so many >> continue to parrot what is in fact untrue. Yoder was an outlier and >> Sherbert was not applied outside unemployment. And the Justices thought in >> those terms during the Term Smith was decided. >> >> Now folks may well want a different regime than pre-Smith but it would be >> refreshing to see at least scholars (if not litigators) accurately discuss >> the actual doctrine and not the doctrine they prefer. >> >> The New York ACA case yesterday including indefensible reasoning on what >> RFRA is and what the doctrine was before. For example, the court cites to >> Michael mcConnell's article, for the proposition that mandatory exemptions >> were common at the time of the framing, a theory the Justices have rejected >> and Ellis West and Philip Hamburger have shown to be deeply flawed >> historically. In my own work on liberty vs licentiousness, it is abundantly >> clear the framers were far closer to the Smith way of reasoning than >> mandatory accommodation. >> >> Marci >> >> Marci A. Hamilton >> Verkuil Chair in Public Law >> Benjamin N. Cardozo Law School >> Yeshiva University >> @Marci_Hamilton >> >> >> >> On Dec 18, 2013, at 9:45 AM, Michael Worley wrote: >> >>> And yet, without some form of heightened scrutiny, the free exercise clause >>> becomes a shell-- a hollow clause. I'm not saying RFRA gets the balancing >>> right (I could make that argument, but I'm not), I'm saying that we have to >>> let judges do this balancing in some way. Otherwise the Free Exercise >>> Clause will become as important as the Ninth Amendment is to contemporary >>> jurisprudence. And Employment Division's principles apply to churches, not >>> just the litigants in this set of cases. >>> >>> There are plenty of 14th Amendment cases (think Brown and subsequent busing >>> cases in lower courts) where judges have acted as "super-legislatures." >>> Why? To protect rights! >>> >>> Michael >>> >>> >>> On Wed, Dec 18, 2013 at 3:46 AM, Marci Hamilton wrote: This exchange, which shows both Marty and Eugene's high qualifications for public service, underscores how RFRA (and RLUIPA) turn federal courts into super legislatures and violate t
Re: Are large employers really better off dropping health insurance?
Sorry it took so long. My response to Eugene and others raising the same question is here: http://balkin.blogspot.com/2013/12/hobby-lobby-part-iii-adoes-federal-law.html As always, I welcome any critiques/suggestions from list-members, thanks. On Wed, Dec 18, 2013 at 11:36 AM, Marty Lederman wrote: > I apologize for not responding right away, but I'm slammed with other > stuff. There is a lot to say here, and I think it's important -- Eugene is > raising some good questions. I'll try to respond in the next day or so; in > the meantime, I'm very grateful for all the reactions, both supportive and > critical (and both!) . . . please keep them coming, thanks. > > > On Tue, 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 >> >> >> >> >> > ___ 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.
RE: Are large employers really better off dropping health insurance?
To make Braunfeld analogy closer, wouldn't you'd need a law that said, "if you aren't open 24/7, you have to pay an $X tax" -- or, in the Sherbert context, "if you quit work without good cause, you have to pay a tax equal to X% of your unemployment compensation"? I would think that either of these situations would indeed be seen as a substantial burden on religious practice (setting aside the separate discussion that Marty and I are having about whether the employer mandate isn't a burden because, even paying the tax, both secular and religious employers would come out ahead by dropping their insurance policies). Or am I mistaken? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Micah Schwartzman Sent: Wednesday, December 18, 2013 7:19 AM To: Law & Religion issues for Law Academics Subject: Re: Are large employers really better off dropping health insurance? 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, th
RE: Are large employers really better off dropping health insurance?
David's correct that there may be a discrepancy here --- and the greater the discrepancy the greater the cost to government and the public of providing the accommodation. I think the discrepancy is likely to be smaller rather than larger in cases involving government mandates requiring third parties (like employers) to provide intangible, fungible benefits (like money or insurance coverage) to their employees. I also think that it is constitutionally permissible and normatively appropriate for the government to incur some costs to accommodate religious exercise - although it may not be clear in many cases how the cost should be measured and when it becomes unacceptably high. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of David Cruz Sent: Wednesday, December 18, 2013 11:24 AM To: Law & Religion issues for Law Academics Subject: Re: Are large employers really better off dropping health insurance? Alan, Did you mean the two quoted passages below to be equivalent? They seem somewhat different (at least potentially) to me. That is, the cost of having the government rather than employers provide a benefit might outstrip the amount an employer gains by not providing the benefit, might it not? Does that potential "efficiency" discrepancy matter for your analysis? David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: "A.E. Brownstein" mailto:aebrownst...@ucdavis.edu>> Reply-To: Law & Religion issues for Law Academics mailto:religionlaw@lists.ucla.edu>> To: Law & Religion issues for Law Academics mailto:religionlaw@lists.ucla.edu>> Subject: RE: Are large employers really better off dropping health insurance? [snip] 3. that if exempt employers save money as a result of the exemption, they should contribute an equivalent amount [snip] [snip] the costs to government of making sure that the beneficiaries of the statute do not lose out [snip] ___ 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.
Re: Are large employers really better off dropping health insurance?
You have a fair point; I'm uncomfortable with *Reynolds*, but that doesn't mean there weren't less protections for religion pre-incorporation. However, the distinguishing of *Yoder *and *Sherbert* (not to mention *Cantwell*) in *Smith* is just a legal fiction Scalia made up. The Law Review article by James D. Gordon III "Free exercise on the Mountaintop" illustrates well the problems with the theory that *Smith* was right On Wed, Dec 18, 2013 at 2:37 PM, Marci Hamilton wrote: > This reasoning is based on the mythology created around the free exercise > clause by the reactions to Smith and the misrepresentations about the > doctrine to Congress. It is quite remarkable this many years later so many > continue to parrot what is in fact untrue. Yoder was an outlier and > Sherbert was not applied outside unemployment. And the Justices thought in > those terms during the Term Smith was decided. > > Now folks may well want a different regime than pre-Smith but it would > be refreshing to see at least scholars (if not litigators) accurately > discuss the actual doctrine and not the doctrine they prefer. > > The New York ACA case yesterday including indefensible reasoning on what > RFRA is and what the doctrine was before. For example, the court cites to > Michael mcConnell's article, for the proposition that mandatory exemptions > were common at the time of the framing, a theory the Justices have rejected > and Ellis West and Philip Hamburger have shown to be deeply flawed > historically. In my own work on liberty vs licentiousness, it is > abundantly clear the framers were far closer to the Smith way of reasoning > than mandatory accommodation. > > Marci > > Marci A. Hamilton > Verkuil Chair in Public Law > Benjamin N. Cardozo Law School > Yeshiva University > @Marci_Hamilton > > > > On Dec 18, 2013, at 9:45 AM, Michael Worley wrote: > > And yet, without some form of heightened scrutiny, the free exercise > clause becomes a shell-- a hollow clause. I'm not saying RFRA gets the > balancing right (I could make that argument, but I'm not), I'm saying that > we have to let judges do this balancing in some way. Otherwise the Free > Exercise Clause will become as important as the Ninth Amendment is to > contemporary jurisprudence. And *Employment Division*'s principles apply > to churches, not just the litigants in this set of cases. > > There are plenty of 14th Amendment cases (think *Brown *and subsequent > busing cases in lower courts) where judges have acted as > "super-legislatures." Why? To protect rights! > > Michael > > > On Wed, Dec 18, 2013 at 3:46 AM, Marci Hamilton wrote: > >> This exchange, which shows both Marty and Eugene's high qualifications >> for public service, underscores how RFRA (and RLUIPA) turn federal courts >> into super legislatures and violate the separation of powers -- as Boerne >> ruled. No court in my view is institutionally competent to make these >> assessments and no judge, who is unaccountable to the electorate, should. >> >> Marci >> >> Marci A. Hamilton >> Verkuil Chair in Public Law >> Benjamin N. Cardozo Law School >> Yeshiva University >> @Marci_Hamilton >> >> >> >> 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
Re: Are large employers really better off dropping health insurance?
This reasoning is based on the mythology created around the free exercise clause by the reactions to Smith and the misrepresentations about the doctrine to Congress. It is quite remarkable this many years later so many continue to parrot what is in fact untrue. Yoder was an outlier and Sherbert was not applied outside unemployment. And the Justices thought in those terms during the Term Smith was decided. Now folks may well want a different regime than pre-Smith but it would be refreshing to see at least scholars (if not litigators) accurately discuss the actual doctrine and not the doctrine they prefer. The New York ACA case yesterday including indefensible reasoning on what RFRA is and what the doctrine was before. For example, the court cites to Michael mcConnell's article, for the proposition that mandatory exemptions were common at the time of the framing, a theory the Justices have rejected and Ellis West and Philip Hamburger have shown to be deeply flawed historically. In my own work on liberty vs licentiousness, it is abundantly clear the framers were far closer to the Smith way of reasoning than mandatory accommodation. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 18, 2013, at 9:45 AM, Michael Worley wrote: > And yet, without some form of heightened scrutiny, the free exercise clause > becomes a shell-- a hollow clause. I'm not saying RFRA gets the balancing > right (I could make that argument, but I'm not), I'm saying that we have to > let judges do this balancing in some way. Otherwise the Free Exercise Clause > will become as important as the Ninth Amendment is to contemporary > jurisprudence. And Employment Division's principles apply to churches, not > just the litigants in this set of cases. > > There are plenty of 14th Amendment cases (think Brown and subsequent busing > cases in lower courts) where judges have acted as "super-legislatures." Why? > To protect rights! > > Michael > > > On Wed, Dec 18, 2013 at 3:46 AM, Marci Hamilton wrote: >> This exchange, which shows both Marty and Eugene's high qualifications for >> public service, underscores how RFRA (and RLUIPA) turn federal courts into >> super legislatures and violate the separation of powers -- as Boerne ruled. >> No court in my view is institutionally competent to make these assessments >> and no judge, who is unaccountable to the electorate, should. >> >> Marci >> >> Marci A. Hamilton >> Verkuil Chair in Public Law >> Benjamin N. Cardozo Law School >> Yeshiva University >> @Marci_Hamilton >> >> >> >> 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
Re: Are large employers really better off dropping health insurance?
Alan, Did you mean the two quoted passages below to be equivalent? They seem somewhat different (at least potentially) to me. That is, the cost of having the government rather than employers provide a benefit might outstrip the amount an employer gains by not providing the benefit, might it not? Does that potential “efficiency” discrepancy matter for your analysis? David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: "A.E. Brownstein" mailto:aebrownst...@ucdavis.edu>> Reply-To: Law & Religion issues for Law Academics mailto:religionlaw@lists.ucla.edu>> To: Law & Religion issues for Law Academics mailto:religionlaw@lists.ucla.edu>> Subject: RE: Are large employers really better off dropping health insurance? [snip] 3. that if exempt employers save money as a result of the exemption, they should contribute an equivalent amount [snip] [snip] the costs to government of making sure that the beneficiaries of the statute do not lose out [snip] ___ 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.
RE: Are large employers really better off dropping health insurance?
Rick asks an important question. We can step back from the constraints of the current litigation and think about how this issue should be resolved on a clean slate, (This analysis also requires ignoring the polarized and dysfunctional governments that exist at the national level and in many states.) One basic model for resolving this issue and some others involving the provision of intangible and fungible goods, would suggest: 1. that government exempt conscientious objectors from the operation of the statute; 2. that government provide the insurance coverage to which they would otherwise be entitled to the employees of exempt employers; 3. that if exempt employers save money as a result of the exemption, they should contribute an equivalent amount to some government identified public goods that are consistent with their faith -- thereby mitigating if not eliminating the cost to government of providing the insurance coverage to the employees of exempt employers, and also mitigating if not eliminating any incentive to assert a sham claim to an exemption just to receive the secular benefits that result from the exemption. Marty's argument that there really is no mandate essentially suggests that the Affordable Care Act does this preemptively by giving all employers an alternative to providing the insurance coverage that some oppose on religious grounds. While Marty and Eugene very ably discuss whether the Affordable Care Act really gives employers an adequate alternative to providing the insurance, we should not lose sight of the foundation of their very thoughtful posts. A system that provides for alternative duties or obligations consistent with the objector's faith by requiring appropriate alternative contributions that indirectly offset the costs to government of making sure that the beneficiaries of the statute do not lose out does not substantially burden religious persons nor does it impose unreasonable costs on government or third parties. Not all accommodation issues can be resolved under this approach. Perhaps most cannot. But some can. If we are going to live together in a religiously pluralistic society in which government tries to respect the autonomy and dignity of all persons, isn't this kind of compromise the best approach to solving a problem like this one. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Rick Garnett [rgarn...@nd.edu] Sent: Wednesday, December 18, 2013 9:12 AM To: Law & Religion issues for Law Academics Subject: RE: Are large employers really better off dropping health insurance? Dear friends, I’m also grateful to Eugene, Marty, Nelson, Micah, Fred, and many, many others who have been blogging and writing – carefully and insightfully – about the HHS cases. I wanted to raise a not particularly technical or doctrinal question that has been on my own mind as I think about the cases: Let’s put aside (just for now) our conversations and disagreements about the meaning and applicability of RFRA (that is, about whether or not that statute requires an accommodation for some objecting and non-exempt employers) and also about whether the Establishment Clause precludes such an accommodation. Let’s put ourselves, instead, in the position of legislators (or staffers!) drafting the ACA, or administrators (or staffers!) drafting the relevant rules, in the first instance. Let’s say we’ve decided that preventive services should be available to all women without cost sharing and that these services should those that are at issue in the HHS lawsuits. We know that some employers – not many, but some; primarily religiously affiliated, but not all – will have religion-based objections to providing coverage that includes these services to their employees. Would we have any good reasons affirmatively to decide *not* to craft the statute or regulations in such a way that the employees of objecting employers would receive the services in question via a mechanism or route that avoided the objection and accommodated the objectors? Perhaps no such alternative mechanism or route – one that delivered the services without additional inconvenience or cost to the beneficiaries -- was or is feasible. Others on this list have more direct experience than I do with these matters, but my impression is that alternatives were and remain possible. We would want any such alternative to not involve inconvenience or disadvantage to the beneficiaries or to give the objecting employers any kind of financial windfall or competitive advantage. But, again, I assume such an alternative could have been designed. (If I’m wrong about this, then the objecting employers are, it seems to me, in a weaker position.) Perhaps, instead, our reasons for not accommodating would have to do with costs of another kind: We might think that accommodating th
RE: Are large employers really better off dropping health insurance?
Dear friends, I'm also grateful to Eugene, Marty, Nelson, Micah, Fred, and many, many others who have been blogging and writing - carefully and insightfully - about the HHS cases. I wanted to raise a not particularly technical or doctrinal question that has been on my own mind as I think about the cases: Let's put aside (just for now) our conversations and disagreements about the meaning and applicability of RFRA (that is, about whether or not that statute requires an accommodation for some objecting and non-exempt employers) and also about whether the Establishment Clause precludes such an accommodation. Let's put ourselves, instead, in the position of legislators (or staffers!) drafting the ACA, or administrators (or staffers!) drafting the relevant rules, in the first instance. Let's say we've decided that preventive services should be available to all women without cost sharing and that these services should those that are at issue in the HHS lawsuits. We know that some employers - not many, but some; primarily religiously affiliated, but not all - will have religion-based objections to providing coverage that includes these services to their employees. Would we have any good reasons affirmatively to decide *not* to craft the statute or regulations in such a way that the employees of objecting employers would receive the services in question via a mechanism or route that avoided the objection and accommodated the objectors? Perhaps no such alternative mechanism or route - one that delivered the services without additional inconvenience or cost to the beneficiaries -- was or is feasible. Others on this list have more direct experience than I do with these matters, but my impression is that alternatives were and remain possible. We would want any such alternative to not involve inconvenience or disadvantage to the beneficiaries or to give the objecting employers any kind of financial windfall or competitive advantage. But, again, I assume such an alternative could have been designed. (If I'm wrong about this, then the objecting employers are, it seems to me, in a weaker position.) Perhaps, instead, our reasons for not accommodating would have to do with costs of another kind: We might think that accommodating these employers would undermine certain public commitments or shared values that should not be undermined, or that accommodating them would "express" something (an endorsement of patriarchal or outdated views regarding sexuality, perhaps) that we don't want the government to express. I don't think that accommodating objecting employers would do either of these things, but maybe some of us disagree. If we saw the objecting employers as aligned with interests and aims that we find repugnant, we might not want to accommodate them just because, well, they are on the side of things we find repugnant. Or, maybe, we would decline - even if we could go back in time and re-draft - to accommodate objecting employers because we think religious objections to generally applicable laws should not be singled out for solicitude unless such singling out is somehow required by the Constitution. Or, maybe we think that, categorically, commercial (or non-house-of-worship) employers do not and cannot "exercise religion" so cannot be burdened in ways that call for accommodation. Again, I don't mean here to engage the important and interesting analysis that others are developing and sharing regarding the RFRA claims or Establishment Clause case law. I'm thinking more in terms of "how should our political community handle what appears to be the tension between our desire to secure and provide a certain benefit and the religion-based concerns of some to a particular mechanism for providing and securing that benefit?" If an accommodation (that does not impose burdens on the employees of objecting employers and that does not give an unfair windfall to those employers) was, and remains, feasible, then why *shouldn't* we provide it? Best, R Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State & Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edu<mailto:rgarn...@nd.edu> To download my scholarly papers, please visit my SSRN page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235> Blogs: Prawfsblawg<http://prawfsblawg.blogs.com/> Mirror of Justice<http://mirrorofjustice.blogs.com/> Twitter: @RickGarnett<https://twitter.com/RickGarnett> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, December 18, 2013 11:37 AM To: Law & Religion issues for Law Academics Subject: Re: Are large employers really better of
Re: Are large employers really better off dropping health insurance?
I apologize for not responding right away, but I'm slammed with other stuff. There is a lot to say here, and I think it's important -- Eugene is raising some good questions. I'll try to respond in the next day or so; in the meantime, I'm very grateful for all the reactions, both supportive and critical (and both!) . . . please keep them coming, thanks. On Tue, 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
Re: Are large employers really better off dropping health insurance?
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
Re: Are large employers really better off dropping health insurance?
Even Free Speech violations about time, place and manner get intermediate (heightened) scrutiny. My reading of Smith suggest Free Exercise claims do not. On Wed, Dec 18, 2013 at 8:08 AM, Paul Horwitz wrote: > I don't think it becomes the equivalent of the Ninth Amendment, or a > shell, without heightened scrutiny as a freestanding principle. And I say > that as a fan of the pre-Smith regime. Rather, it becomes an > equality/speech provision, like the rest of the modern First Amendment. I > am by no means a fan of that tendency. But it still leaves the clause as > something, not nothing. > > On Dec 18, 2013, at 9:01 AM, "Michael Worley" wrote: > > And yet, without some form of heightened scrutiny, the free exercise > clause becomes a shell-- a hollow clause. I'm not saying RFRA gets the > balancing right (I could make that argument, but I'm not), I'm saying that > we have to let judges do this balancing in some way. Otherwise the Free > Exercise Clause will become as important as the Ninth Amendment is to > contemporary jurisprudence. And *Employment Division*'s principles apply > to churches, not just the litigants in this set of cases. > > There are plenty of 14th Amendment cases (think *Brown *and subsequent > busing cases in lower courts) where judges have acted as > "super-legislatures." Why? To protect rights! > > Michael > > > On Wed, Dec 18, 2013 at 3:46 AM, Marci Hamilton wrote: > >> This exchange, which shows both Marty and Eugene's high qualifications >> for public service, underscores how RFRA (and RLUIPA) turn federal courts >> into super legislatures and violate the separation of powers -- as Boerne >> ruled. No court in my view is institutionally competent to make these >> assessments and no judge, who is unaccountable to the electorate, should. >> >> Marci >> >> Marci A. Hamilton >> Verkuil Chair in Public Law >> Benjamin N. Cardozo Law School >> Yeshiva University >> @Marci_Hamilton >> >> >> >> 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
Re: Are large employers really better off dropping health insurance?
I don't think it becomes the equivalent of the Ninth Amendment, or a shell, without heightened scrutiny as a freestanding principle. And I say that as a fan of the pre-Smith regime. Rather, it becomes an equality/speech provision, like the rest of the modern First Amendment. I am by no means a fan of that tendency. But it still leaves the clause as something, not nothing. > On Dec 18, 2013, at 9:01 AM, "Michael Worley" wrote: > > And yet, without some form of heightened scrutiny, the free exercise clause > becomes a shell-- a hollow clause. I'm not saying RFRA gets the balancing > right (I could make that argument, but I'm not), I'm saying that we have to > let judges do this balancing in some way. Otherwise the Free Exercise Clause > will become as important as the Ninth Amendment is to contemporary > jurisprudence. And Employment Division's principles apply to churches, not > just the litigants in this set of cases. > > There are plenty of 14th Amendment cases (think Brown and subsequent busing > cases in lower courts) where judges have acted as "super-legislatures." Why? > To protect rights! > > Michael > > >> On Wed, Dec 18, 2013 at 3:46 AM, Marci Hamilton wrote: >> This exchange, which shows both Marty and Eugene's high qualifications for >> public service, underscores how RFRA (and RLUIPA) turn federal courts into >> super legislatures and violate the separation of powers -- as Boerne ruled. >> No court in my view is institutionally competent to make these assessments >> and no judge, who is unaccountable to the electorate, should. >> >> Marci >> >> Marci A. Hamilton >> Verkuil Chair in Public Law >> Benjamin N. Cardozo Law School >> Yeshiva University >> @Marci_Hamilton >> >> >> >>> 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.
Re: Are large employers really better off dropping health insurance?
And yet, without some form of heightened scrutiny, the free exercise clause becomes a shell-- a hollow clause. I'm not saying RFRA gets the balancing right (I could make that argument, but I'm not), I'm saying that we have to let judges do this balancing in some way. Otherwise the Free Exercise Clause will become as important as the Ninth Amendment is to contemporary jurisprudence. And *Employment Division*'s principles apply to churches, not just the litigants in this set of cases. There are plenty of 14th Amendment cases (think *Brown *and subsequent busing cases in lower courts) where judges have acted as "super-legislatures." Why? To protect rights! Michael On Wed, Dec 18, 2013 at 3:46 AM, Marci Hamilton wrote: > This exchange, which shows both Marty and Eugene's high qualifications for > public service, underscores how RFRA (and RLUIPA) turn federal courts into > super legislatures and violate the separation of powers -- as Boerne ruled. > No court in my view is institutionally competent to make these assessments > and no judge, who is unaccountable to the electorate, should. > > Marci > > Marci A. Hamilton > Verkuil Chair in Public Law > Benjamin N. Cardozo Law School > Yeshiva University > @Marci_Hamilton > > > > 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 (*
Re: Are large employers really better off dropping health insurance?
This exchange, which shows both Marty and Eugene's high qualifications for public service, underscores how RFRA (and RLUIPA) turn federal courts into super legislatures and violate the separation of powers -- as Boerne ruled. No court in my view is institutionally competent to make these assessments and no judge, who is unaccountable to the electorate, should. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton 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, ch
