published Nov 12th 2016, 9:44 am, by Noah Feldman

(Bloomberg View) —
Vice President-elect Mike Pence has told evangelical leader James Dobson that the next administration will reverse President Barack Obama’s contraceptive mandate rules and transgender bathroom guidance — both of which it can do without Congress. If Pence speaks for President-elect Donald Trump, both decisions would have major implications for cases now before the U.S. Supreme Court.

In both cases, the effects of unilateral executive action are tricky, because liberal appellate decisions remain on the books, and because conservatives would like to see those decisions reversed. Trump doesn’t yet have an attorney general or a solicitor general, but his Department of Justice will soon have to figure out how to proceed.

Speaking to Dobson, the director of Focus on the Family, Pence — who calls himself a Christian, a conservative and a Republican “in that order” — presented himself as the voice of the Trump administration on morality.

Of course, it remains to be seen whether Trump pays Pence any attention at all. Pence allowed plenty of daylight between himself and his running mate during the campaign, and Trump’s vaunted sense of loyalty may have been disturbed. In his victory speech, the president-elect didn’t mention his vice president until he had finished the speech, and acknowledged him only as an afterthought.

Nevertheless it makes sense that Trump would be prepared to reverse Obama’s contraceptive and transgender policies, which are very unpopular among conservatives. And that’s where the legal complexity begins.

The contraceptive rules, the subject of a Supreme Court case that was sent back to the courts of appeal in May, were issued by the Department of Health and Human Services. The rules explicitly interpret the Affordable Care Act, which requires most health-care plans to cover contraceptive services, and implicitly interpret the Religious Freedom Restoration Act, which says that people whose religious exercise is substantially burdened are exempt from federal law unless there is a compelling state interest to deny the exemption.

The rules accommodate religious organizations by providing exemptions, but some organizations, like the Little Sisters of the Poor, objected to aspects of the exemption system, including the way their insurers would still have to provide contraceptive care to employees as a “seamless” part of the health plan. They argued that the rules violated the religious liberty law, which the Obama administration denied. The court couldn’t agree, and its attempts to engineer a deal between the parties have so far failed.

A new Department of Health and Human Services can change the rules. But because the contraceptive rules were issued through the formal regulatory process, after public notice and comment, it would take a new process to issue new rules. Until that happens, the regulation remains in place.

Senate Majority Leader Mitch McConnell has promised that Congress will repeal the ACA. If that happens before the new department rules are issued, there will be no mandate left to challenge.

In either of these scenarios, the Supreme Court won’t reconsider the issue. That’s potentially a disappointment to conservatives who would like the 4-4 split to be resolved in their favor by a Trump appointee to the court. But the death of the contraception mandate — not to mention Obamacare — would presumably outweigh the pleasure of a win in religious liberty law.

The transgender bathroom issue, which the Supreme Court agreed to hear in October, is even trickier from a legal strategy standpoint. The case began when Gavin Grimm, a transgender teenager, sued his high school for permission to use the boys’ room. The school refused and a district court agreed. But the appeals court reversed that decision, ordering the school to give Grimm access. That judgment is the one the court agreed to review.

The basis for the appellate decision was an Obama administration interpretation of Title IX and the regulations issued under it. The interpretation came in the form of a “Dear Colleague letter” — in essence a letter from the civil-rights heads of the Department of Education and the Department of Justice addressed to all schools that says how the administration interprets the relevant laws. The court held that the administration guidance was entitled to deference by the judiciary.

Because a Dear Colleague letter isn’t a full-dress regulation, Trump could retract the letter on day one of his administration. That would remove the legal basis for the appeals court ruling.

But Trump can’t vacate the lower court opinion. And the change wouldn’t make the case moot, because Grimm still wants to use the boys’ room, and the school doesn’t want to let him. The controversy between them is very much alive.

Trump’s Justice Department could ask the Supreme Court to vacate the judgment below and remand to the lower courts to reconsider the issue in light of the new Trump guidance. The justices would likely agree, because the legal basis for the judgment below would be changed. The appeals court would have to reverse its judgment, because it has already held that the law and regulation are ambiguous and that a court should defer to the administration’s interpretation.

The catch is that if this happens, the Trump administration may lose the chance to have a conservative Supreme Court rule definitively that biological sex, not gender, should control access to bathrooms and locker rooms.

Grimm could ask the Supreme Court to review an appellate decision against him. But that would be highly risky for the transgender rights movement. It would rest the fate of a crucial issue in the hands solely of Justice Anthony Kennedy. And the fact that at least four justices already agreed to review the appellate decision in Grimm’s favor signals that Kennedy may be skeptical.

Before the election, I worried that the transgender case was going to the court too quickly, before social attitudes had changed to recognize full equality for transgender people. Trump’s retraction of the Obama administration’s guidance would be a serious setback for the transgender rights movement. But it might accidentally save the movement from an adverse Supreme Court decision that would create a precedent lasting well beyond President Trump.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net

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