New Resource:


    By Hadley Heath

    The Independent Women's Voice is debuting a new online resource for information about the role of the Supreme Court. The website,, features interactive quizzes and links to video content, along with legal briefs and other articles. 

    For an idea of what you'll find there, try this quiz:



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    Placing the Administrative State in Constitutional Context


    By Hadley Heath

    One issue that affects the healthcare issue (and many others) is the role of the administrative state. For example, the Department of Health and Human Services plays a huge role in making decisions about the implementation of various laws. Various government offices and bureaucracies can offer regulatory guidance pursuant to the Affordable Care Act, and the Centers for Medicare and Medicaid Services oversees these large government insurance programs. 

    But what power does the administrative state have, and how does that compare to the Constitution's design for the branches of government? IWF's legal fellow Erin Hawley explores this topic in a new legal brief: Placing the Administrative State in Constitutional Context

    Here's an excerpt from the executive summary:

    America’s administrative state now wields vast power over nearly every aspect of daily life. From setting up a business to building a home to accessing contraceptives, it is often an administrative agency that writes, enforces, and adjudicates the legal standards that govern these activities. This legal brief explores the problem of governance by administrative agency. First, the brief highlights how often the legal rules that affect individuals and businesses are made, not by Congress, but instead by unelected administrators. The brief then explores the Framers’ views of constitutional structure, and in particular, their understanding of separation of powers and nondelegation as necessary to preserving individual liberty.

    Next, the brief locates the origins of the administrative state in anti-constitutional progressive thought. For the Progressives, administration, rather than republicanism, was the key to good government. Because administrators were to be neutral experts, the Progressives designed administration to be unaccountable to elected officials. They wanted a different kind of government, one where republicanism—or governance by elected representatives—didn’t get in the way of efficiency.

    Finally, the brief explains why the administrative state is in significant tension with the Founders’ Constitution. In particular, the current administrative state contravenes the limited government envisioned by the Founders by placing all of the government’s power in one branch, rather than in the three separate branches. This so-called Fourth Branch of government typically exercises legislative, executive, and judicial powers, and without much oversight by the elected branches. Further, broad and open-ended statutes passed by Congress give administrative agencies unheard of discretion to “write” the law. Practically speaking, the executive exercises little oversight over these agencies. And the Supreme Court has largely ceded the field when it comes to judicial review. While the Progressives did not care about upending the constitutional framework—they viewed the Constitution as a historical anachronism that must give way to more efficient administration—we should be wary of arguments and institutions that exchange liberty for efficiency. Though the vast size of our federal government makes it difficult to envision life without the administrative state, like the Founders, we should be concerned when government agencies ordinarily exercise all of the government’s power and are often practicably unaccountable to the people and their elected representatives. 

    Read this and other legal briefs from the Independent Women's Forum on our website

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    SCOTUS Issues Non-Ruling in Zubik v. Burwell


    By Hadley Heath

    Today the Supreme Court issued this unsigned opinion in Zubik v. Burwell, the consolidated case brought by religious non-profits to challenge the Affordable Care Act's birth control mandate. The opinion essentially sends the issue back to lower (appellate) courts, with instructions to find a compromise agreeable to all parties. 

    This opinion represents an important victory for the petitioners. With the passing of Justice Scalia, there were few likely outcomes that would have served the law's challengers better than this one. The most likely outcome would have been a 4-4 rulling, which would have allowed the lower courts' rulings to stand. Most of the lower courts had sided with the federal government. But today's opinion vacates those prior rulings and instructs the 3rd, 5th, 10th, and D.C. Circuits to try again.

    From the opinion:

    Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans “receive full and equal health coverage, including contraceptive coverage."

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    U.S. House Wins at District Level in House v. Burwell


    By Hadley Heath

    The U.S. House won an important victory today at the district level in House v. Burwell. This case started with several claims from the legislative branch that the executive branch was overstepping its authority in the ways it was implementing the Affordable Care Act or ObamaCare. The ruling in the case came down to the cost-sharing subsidies that the Obama Administration sent out to insurance companies, which Judge Rosemary Collyer declared illegal. These subsidies were never appropriated by Congress. Here is a statement from the Independent Women's Voice that explains more:

    "A federal judge has ruled that the Obama administration cannot violate the rule of law and illegally spend tens of billions of dollars to prop up its failing health care program. Despite the clear letter of the law, the Obama administration has been blatantly violating the Constitution’s Separation of Powers in paying cost-sharing subsidies without an appropriation from Congress, spending that would total $130 billion over 10 years.

    "U.S. District Court Judge Rosemary M. Collyer called a halt to the Obama Administration illegal funding of this ObamaCare subsidy program. Contrary to the headlines, low-income people will continue to qualify for more generous coverage since the judge stayed her order pending an inevitable appeal. It is Big Insurance that will not be paid additional taxpayer money since – and this is not a small detail – Congress never appropriated funding for this blank check to insurance companies.

    "This decision is a win for American citizens who have been devastated by ObamaCare's premium hikes, insurance cancellations, and reduced choices. By refusing to allow the Administration to throw good money after bad to prop up its already-failing program, this will only hasten the much needed reconsideration of legislation to repeal and replace ObamaCare to make better health care broadly and affordably available. And it is a timely reminder that this is not a monarchy, but a democracy, and there are limits to executive power."

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    Challengers in Zubik File Further Briefs


    By Hadley Heath

    The Supreme Court did something surprising last month -- Justices asked challengers in Zubik v. Burwell to file briefs examining other ways that women might access contraception if the Affordable Care Act's mandate were not applied to them (non-profit religious employers). Today, those challengers filed their briefs.

    This is clearly connected to the Religious Freedom Restoration Act, the law that Justices use to balance government (public) interests against religious liberty concerns. The RFRA says that government action can only burden someone's religious freedom if the government is acting toward a compelling public interest and acting by the least restrictive means to that end. This last part is where the government lost its case against Hobby Lobby, because Justices were not convinced that the birth-control mandate was the least restrictive way to make sure women had access to contraception (a public interest).

    Remember, Zubik is different from Hobby Lobby because challengers in Zubik have been offered an "accommodation" under the mandate. Under the accommodation, non-profit employers must file some paperwork, essentially referring their workers to a third party to provide the coverage for the offending forms of contraception. 

    Counsel for some of the challengers at Alliance Defending Freedom had this to say about the situation:

    "The Supreme Court asked if any way exists to offer contraceptive and abortifacient coverage without making Christian schools, nuns, and priests complicit in providing them. The answer we gave the court today is yes. There are many ways in which all women could receive cost-free contraceptive coverage that wouldn’t require involvement by religious non-profit groups. The government could offer separate avenues for contraception coverage that do not hijack the non-profits’ insurance plans. The Supreme Court should rule in favor of the non-profits in light of the numerous means the government has to achieve its objectives without violating anyone’s religious liberty.”

    The Court is expected to rule on this case this summer.


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