The Catholic voter and the administrative state

Now that the presidential election nears, many of us in the Catholic world are pondering how Catholic interests will make themselves heard in the contest. Yet in pondering these matters, many Catholics are coming to recognize that winning presidential elections on behalf of core Catholic values, such as the right to life, may not be enough to secure the protection of those values. The administrative state wields increasing power in America, so much so that its incursions into our lives can continue regardless of who occupies the White House.

Since administrative law is highly complex, I turned to Edward Mechmann, a highly respected legal expert, to fill me in on it, and what follows is a lively interview I conducted with him.

Mechmann is the director of Public Policy and the Director of Safe Environment for the Archdiocese of New York. He graduated from Columbia and from Harvard Law School and has a master’s from St. Joseph’s Seminary Institute of Religious Studies.  Since 1993 he has worked on public policy education and advocacy for the archdiocese, and since 2005, he has also overseen the archdiocese’ s child-protection program. Before coming to the archdiocese, he was a state and federal prosecutor in New York City. He is the author of a book on the social teaching of the Church and numerous articles on public policy issues, and writes a blog for the archdiocese on faith in the public square.

CWR: Recently at the Guild of Catholic Lawyers monthly talk in New York City, you shared with Guild members your concerns about the stealthy inroads against liberty—particularly religious liberty—that the administrative state is making. Can you share with our readers how administrative law has developed in recent years and why it is being resorted to by those who wish to roll back religious liberty?

Edward Mechmann: In modern times a tremendous amount of law-making authority has been delegated by legislatures to administrative agencies, and the courts have granted them so much discretion that the basic structure of our government has dramatically changed. Although most of these agencies are ostensibly located within the executive branch, their permanent staff often operate as if they are an independent fourth branch—this is the phenomenon often referred to as “the administrative state.”

The reach of these administrative agencies has also exploded over the last few decades. There are over 180,000 pages of federal regulations, and tens of thousands more pages of state regulations. Agency budgets and staffing grow every year, as do the number of enforcement actions. These agencies are increasingly being staffed by “elite” graduates of law schools and colleges that are dominated by “progressive” professors and who naturally adopt that agenda for their own. The result is that more and more of the actions of administrative agencies reflect a liberal or “progressive” ideology, regardless of the positions of the elected officials who supposedly oversee them.

A particular threat has become apparent in recent years—the use of informal de facto rules. The best-known examples are two infamous “Dear Colleague” letters from the Obama administration education department, one of which imposed gender ideology on public schools, and the mandating of how college sexual misconduct cases would be handled. These informal rules don’t go through the official process for enacting regulations, but they are just as binding in practice as any law passed by Congress.

This legal context is very important because more and more Church institutions are becoming, in effect, branches of the government. Charitable and health care institutions and schools are becoming more dependent on government contracts for funding, or operating licenses for mere existence. This has left them extremely vulnerable to the actions of administrative agencies.

The result is that individuals and institutions are finding that many more of the important decisions in our nation are being made by the administrative state, and their lives are being affected in ways they never expected according to ideologies that they disagree with. All of these interactions between the public and the administrative state create vulnerable points at which life and religious liberty can be threatened.

The progressive bureaucratic elite who want to advance their agenda know very well that it is much easier to operate through the administrative state than passing laws in a legislature or going to court. Enacting a regulation—or issuing an informal “Dear Colleague” letter or executive order—is cheap and easy, and it has the same result. Those who want to coerce religious organizations into surrendering our beliefs know this very well. It took over a decade of legislative and court fights before the Supreme Court re-defined marriage, but it just takes the stroke of a pen to require religious organizations to recognize same-sex unions or gender identity, or face crippling fines.

CWR: During the talk at the Guild, you made reference to a recent case that highlights the extent to which changes in administrative law inimical to religious liberty go undetected by the general public, or even the legal community. Can you share the facts of that case and explain why they constitute such a cautionary tale for those sworn to uphold religious liberty in this country?

Mechmann: In 2015, the Department of Financial Security of New York State, which has regulatory oversight of the insurance industry, issued “model language” for small employer health insurance policies that would require coverage of elective abortions. Prior to that date, there was absolutely no statutory or regulatory authority for any such mandate. In fact, the State Legislature had failed to enact an abortion insurance mandate for close to 20 years, but that did not stop the department from issuing this “model language.”

When various religious organizations raised objections to this model language, they were ambushed by a stealth threat to religious liberty in one of the purest forms. The department announced that they had already been paying for abortion coverage for years, because the department considered abortion to be “medically necessary surgery”—a standard provision of every contract that nobody thought required coverage for abortion. This secret interpretation had never been made known before, even though the department knew that the religious organizations would object. So Catholic institutions have been paying for abortion on demand for years, without ever knowing it, not because of any statute or court decision, but all because the agency made up its own rule.

A lawsuit was then filed by the Catholic Dioceses of Albany and Ogdensburg, other Catholic and non-Catholic religious organizations, and several private parties. While the litigation was pending, the department decided to put their position on a stronger footing, implicitly conceding that their prior efforts were improper. The department formally proposed regulations that would explicitly impose the abortion mandate—this time, not just on small employer policies, but on all health insurance policies.

As of now, the lawsuit has been dismissed and is currently on appeal. (I have submitted an amicus brief on behalf of the New York State Catholic Conference.) It will ultimately have to be decided by our state’s highest court.

CWR: How does the Church respond to such challenges to religious liberty? Since you are charged with giving the archdiocese legal advice on these matters, how do you counsel she respond?

Mechmann: I can’t go into the specific legal advice I give on these cases. But in general, there’s an impossible tri-lemma for a conscientious objector—(a) you can ignore the rule and hope you won’t be noticed; (b) you can challenge the rule in an expensive and uphill legal battle; or (c) you can just surrender your rights and comply. None of these options is particularly attractive.

The first approach is a kind of passive resistance or civil disobedience. It tends to be the favored option for many Church organizations, which are notoriously averse to litigation. The danger of this approach is that you are always vulnerable to being targeted for enforcement, which would put you on the defensive—never a good place to be.

Civil disobedience is especially tempting if other organizations choose the second option—full open resistance. We’ve seen this combination many times. For example, with the HHS mandate, only a tiny fraction of organizations that objected eventually went to court. This can be extremely effective if you have the right plaintiff—like the Little Sisters of the Poor in the HHS mandate case—and the right place to bring the lawsuit.

To me, this combination of civil disobedience and carefully targeted litigation is the best approach. It preserves the integrity of the institutions while choosing the most favorable ground for counter-attacking the threat.

But being proactive is very difficult. The development of administrative law has given a tremendous amount of discretion to bureaucrats, and it is hard to overturn their decisions. Another disadvantage is if the challenge is brought by plaintiffs who do not have strong cases, or if they are brought in jurisdictions with bad law—the result may be that the challenge actually makes things worse. It’s also very time-consuming and expensive to sue the government—the HHS mandate controversy began in 2011 and the litigation is still going on despite several favorable Supreme Court rulings.

The third option—quiet capitulation—is unfortunately chosen all too often. This is particularly a temptation for an agency that is completely dependent on government funding or licensing in order to stay in existence. This is also sometimes the result of a sense of defeatism or hopelessness (“you can’t fight City Hall”), but it is a particular problem if there is a Fifth Column inside the institution that openly or surreptitiously opposes Church teaching.

Regardless of what tactic one chooses, it is vitally important to be perfectly clear about the what the Church teaches, to make sure that internal policies reflect that teaching, to hire staff who will uphold that teaching, and not to compromise or undermine that teaching on any level. Otherwise the ability to defend our religious liberty will be severely undermined.

CWR: What can Catholics in the pews do to counter these threats from the administrative state? What can lawyers do?

Mechmann: There’s a famous essay by Alexander Solzhenitsyn, “Live Not By Lies,” in which he exhorts people to reject the lies of the powers-that-be and to refuse to say or do anything contrary to our beliefs. That’s what we expect from our Church and her institutions.

The most important thing for the Catholic laity is to wake up and get educated. We have to make clear to our bishops that we expect Catholic institutions to be legitimately Catholic and we will not support these agencies if they conform instead to the values of the secular world. The state of many legacy Catholic universities is a prime example of this—they are no longer authentically Catholic in their identity or policies, and hence they deserve no support from Catholics.

The reality is that our bishops are most likely to listen to prominent laity, like major donors, heads of institutions, and parish leaders. They have more access to the bishops than the regular Catholics in the pews, and it’s important that they use this to promote authentic Catholic identity and the willingness to defend it.

We also need lawyers who are knowledgeable in the issue of religious liberty and particularly in administrative law. Every lawyer is encouraged to do pro bono work, so we need to find a way to channel that to defend our freedom. And we need to support the pro-life and religious liberty legal centers that do are fighting this battle, like Alliance Defending Freedom or Becket Fund for Religious Liberty.

We also have to recognize that the battle takes place on multiple levels. Federal activity tends to dominate the news, but what’s going on at the state and especially the local levels are even more important to the everyday life of the Church. And those are areas where Catholic laity and clergy may have more opportunities to influence government decision-makers.

CWR: Looking into your crystal ball, what would you say are the prospects for those are charged with defending and advancing the cause of religious liberty? Are you poised to prevail against these administrative encroachments? Will President Trump’s new judges make any difference in this struggle? Or should we be prepared for a long fight?

Mechmann: The fight will be long and difficult. Hostility to the Church, particularly over “social issues” like abortion and sexuality, are at a level that we haven’t seen in many decades. The entanglement of Church agencies with government (through funding and oversight) creates a large area of vulnerability. Right now, the legal deck is heavily stacked against us in many ways. But some creative legal thinking can lead to positive results, particularly by relying on the much broader protections for free speech against government coercion – the recent Supreme Court victories in the Masterpiece Cakes and NIFLA cases are examples.

The kind of judges that the Trump Administration is appointing may turn out to be a big help. They are likely to be more focused on the original meaning of the Constitution and on the actual text of legislation, and thus less deferential to the administrative state and more protective of religious freedom.

…The expansive social welfare state is an established reality and isn’t going away. Proposals to dismantle the administrative state completely are not politically viable.

The challenge the bishops are facing is whether our institutions will even be able to survive if the current trends continue. The Church’s political credibility and influence has been severely diminished, if not extinguished, by the never-ending sex abuse scandal and by repeated defeats on issues like same-sex “marriage.” The days in which bishops had significant political influence are long gone, and unlikely to return.

There has also been a huge political realignment taking place in our country, and the Catholic Church has been left behind. Opinion polls show that large numbers of Catholics do not accept Church teaching on key moral issues (particularly the sexual issues) and it’s not at all clear that they will support the bishops in the fight to defend our religious freedom on those issues. Powerful political forces are displaying an indifference to the Church – and outright hostility – that was unknown in previous years. There are more and more public officials, and certainly a huge number of “progressive” activists, who see no reason to give us favorable treatment or deference – in fact, there are some who would like to see us go out of business entirely.

So to me, the key message for Catholic laity is to make clear to our bishops that we want our Church to be Catholic and not secular, that we expect them to defend the Church, and – perhaps most important – that we will support them in that fight.