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Alison guides Rebecca, Monica and Liz through a discussion of another tool we have to keep religion out of government: administrative rules and regulations. The co-hosts give an overview of this body of law, and discuss how it’s been used to erode the wall of separation and what we can do to roll that back.
Background
Cases
Alison Gill: Welcome to We Dissent the monthly podcast with four secular women attorneys discussing religious liberty issues at state and federal courts and our work to keep religion and government separate. I’m Alison Gill with American Atheists one of your co-hosts.
Monica Miller: I’m Monica Miller and I’m the legal director and senior counsel at the American Humanist Association. And also one of your co-hosts.
Liz Cavell: I’m Liz Cavell associate counsel at the Freedom From Religion Foundation, another co-host .
Rebecca Markert: And I’m Rebecca Markert with the Freedom From Religion Foundation and another co-host. In today’s episode, we are going to discuss the exciting topic of administrative law. We’ve talked a lot about different cases at the Supreme Court, but another significant area in which we fight to keep religion out of government. Another tool that we have to keep state and church separate is within the rules and regulations by administrative agencies and Alison. You are our resident expert in this area. When you came to American Atheists, you brought with you a whole host of experience working on state advocacy and federal legislation. And you really have done so much work for the coalition in bringing up all of our intelligence levels in this area of law. So we’re really excited to talk to you about your area of expertise. So why don’t you tell us why are regulations important? Why are we doing an episode like this?
Alison Gill: Sure, absolutely. And we joke, you know, saying that regulations and administrative laws is dry and maybe on its face, it is right. But when we hear about actions that the administration is doing, that the president is trying to implement, or that, you know, the opposition is trying to stop, everything that gets in the news. That’s all involving agencies and administrative advocacy, administrative law, like just recently, there’s been a lot of controversy around, for example, student debt forgiveness, and that’s all about administrative law, right? And we don’t often draw those connections, but like impacts everybody’s lives. And it’s just sort of like this hidden secret area of law that people don’t really understand exists, or maybe they just gloss over it because it’s complex, but it’s really critical for a variety of reasons. Now, when it comes to our issue area, there’s so much that happened under the Trump administration, under administrative law that affects the separation of religion and government, or I should say completely undermine the separation of religion and government. This is an issue that it’s often hard to get across to constituents people that aren’t lawyers don’t often think about or deal with as much. And the media, they might say, you know, the Department of Education is doing this or the President’s doing that, but they don’t get into the details about how or why it’s happening, or like what the actual processes look like. Even though this issue affects everybody. And also there has been a sort of a long term, I guess, project of conservatives to sort of denigrate the power of federal agencies at administrative law and regulations in general. I mean, you often hear, you know, regulations as like a dirty word from conservatives. I think under the Trump administration, they actually passed a rule that said for every regulation you want to pass, you must take two off the books, right? So there’s no reason behind that. It’s just pure ideology and it makes zero sense because regulations are, as we’re gonna be talking about very important and that they allow the government to do things without regulations, the government cannot do things. So if you want the government to exist and operate, we need regulations.
Rebecca Markert: So I wanna just peel this back a little bit and just do an admin law 101 and go through what are regulations, because I’m not sure that a lot of our listeners know much about how an administrative rule is made and how you go through that process and why it’s so important in their lives. Regulations are one of four types of law that we have in our country. So we have the federal constitution and our state constitutions. We have statutes that are passed by Congress and our various state legislators, then there’s regulations. And then there’s also case law. Those are the different four types of laws that we have in our country. Regulations are rules that are passed by administrative agencies. These administrative agencies are agencies like the Department of Education. For example, they’re not elected bodies, generally speaking, they’re part of the executive branch and are usually under the authority of the president. So how does a regulation come into being? The first thing that happens is that Congress passes a law. Then it’s up to the agencies to fill in the details about that law. Congress can’t determine every parameter of the law. So agencies are the ones who actually make it operate through regulations and rules that they adopt. They adopt rules to implement the statutes that Congress enacts Congress gives them the authority to create these rules. And these rules do have the force of law, agencies have considerable power then to establish and interpret our laws. And regulations are easier to pass than other types of laws. They don’t have to pass through Congress and we don’t have to amend the Constitution in order to have these. And it’s much faster than case law. It’s much faster to pass or put a regulation into effect than it is to litigate a case, regulations and rules are more predictable and it binds more parties. They also allow us the ability to respond quickly to circumstances, and they can be changed more easily when we need to be more responsive to an issue that’s happening. Whereas most of our law is not very responsive and is very slow going. There are restrictions on how to enact or promulgate those roles and regulations. They are governed by the Administrative Procedures Act, which is a law that was passed in the 1940s. That law dictates the procedures an agency must follow in order to establish a rule and regulation. The agencies must have some authority within the statute to create these rules. And these rules are actually reversible with each administration, which is one of the reasons why we’re gonna be talking about that today.
Alison Gill: We talked about statutes, but one other way, we often see these come into effect that gets a lot of press and people might be aware of is executive orders. Now a president issues executive orders. Sometimes there’s a lot of criticism of executive orders because whoever’s against that executive order always calls it like ruling by fiat, like the president issuing fiats, technically executive orders should follow the existing law. They should align with statutes, they should align with case law and then the regulation, they sort of provoke regulations. For example, the president might set out a policy or agenda and then regulations would be used in different agencies that the president names to sort of implement that agenda. So sometimes it’s just an agenda, but it should not be unlawful, it should follow from the things that actually exist. Now, some presidents have been known to push the boundaries here. Most presidents have been known to push the boundaries here and then agencies, you know, building off that executive order might operate beyond what’s actually authorized in statute. And then of course that’s when you get into challenges.
Rebecca Markert: That’s right. Why don’t you also tell us how are regulations used?
Alison Gill: Of course. Well, I’ll give a few examples of regulations. Let’s start with the Department of Education, they might set out regulations regarding how schools can access federal funding. Now the federal government provides lots of funding to different states, both state departments of education and local school districts. So they need rules about how you actually get that funding and what are the strings tied to it and how you apply all those things are regulations requiring annual reporting. So if they’re gonna give out money, they’re usually going to want to know what you’re doing with it. So annual reporting, there’s often various types of reports tied to federal funding. There’s a whole set of regulations implementing Title IX, which is about discrimination based on sex. So basically prohibiting that in education, federally funded education. That’s one interesting thing to point out. It’s not always the case, but a lot of these rules are tied to receiving federal funds. So like there’s non discrimination laws, but you actually have to take federal funds in order to be tied to them in a lot of times, I mean, that’s not every rule, but it’s worth noting. The Department of Health and Human Services or HHS as people call it, might release rules. For example, for insurers participating in Affordable Care Act marketplaces, they have an incredible number of regulations regarding how healthcare is supposed to be provided in our country. So that protects consumers, for example, and just generally make sure the healthcare systems actually work, they might have rules for hospitals to comply with in order to make sure that they’re sterile and, you know, meet basic health requirements. They might, you know, follow emergency medical procedures when for example, you know, patients are rushed to the hospital. The emergency hospitals have to treat them, but there needs to be rules around them. And for grant programs willing to social services. So the government gives out a lot of money. I mean, that’s one of the major ways the government basically does social services is to give out money and that’s, they always have rules tied around it. So conservatives often portray regulations as universally bad, but their purpose is primarily to do things like protect consumers to ensure fair play and equitable markets like prevent fraud and manage the functioning of our government and society.
Liz Cavell: I’m thinking like a lawyer who is very, very smart, but does not know a lot about regulations and the administrative body of law, because I only took administrative law in law school under protest, but I have learned so much about this topic just existing in the world of, you know, law, but also under our kind of usual topics of conversation, the Supreme Court, if you pay attention to the Supreme Court and what they’re doing, yet another big sort of target of this ultra conservative activist court is you’ve probably read about the so-called administrative state and dismantling that is something that is in the crosshairs of this Supreme Court. So Alison, as you’re talking about conservatives portraying regulations, as you know, this bad dirty word, when we talk about the Supreme Court, or when you read about the Supreme Court trying to take down the quote unquote administrative state, this is actually what we’re talking about. We’re talking about this whole fourth body of law that Rebecca described, which is administrative rules and regulations. And so just to kind of draw it all into what we are often talking about at the Supreme Court and just how you might read or hear about this in your daily lives and just in, if you pay attention to politics, this is what people are talking about when they say the administrative state is bad.
Alison Gill: Yeah. And just to point out a few examples, there have been several prominent cases, including cases that really severely undermine the ability of agencies to function. For example, recent cases that undermine the independence of certain administrative agencies. So Congress created some agencies with the idea that they’re supposed to be shielded from politics so that they can function. So basically once someone is appointed that position, they hold it for longer than a single term of a president, for example. And that way the president can’t sort of kick them out and put in their own sort of crony that’s purposeful, because they have like a watchdog function and there’s been cases that basically said, that’s not allowable. Everybody must be in an authority of the president, even though Congress wanted to do otherwise. And therefore they invalidated those provisions of the law. And so that’s one example. Another is the so-called major questions doctrine, which has been used by courts to attack the authority of various regulations by agencies. Most notably recently when it comes to vaccination and the environment and this rule gives courts expanded, standing to challenge rules with vast economic and political significance. So it’s kind of interesting. We’ve had lots of conversations around standing and how difficult it could be to get in court. But if you’re challenging a rule, the court doesn’t like, then you know, it’s okay. It’s okay. And then another example is a recent case. It says admin law judges are impermissible and at least some contexts that’s a appellate court ruling at the moment, but this is incredibly important because it allows, you know, the reason we have administrative law judges, which are judges that are internal to the agency so there’s still judges, there’s still neutral, but they basically help adjudicate cases on a more timely way with a specified set of rules, as opposed to our typical court system, which is so much slower and more complicated. But if that is not available, then if it becomes even harder for agencies to hold people accountable for breaking the law, which is the goal, of course,
Monica Miller: I was just gonna say relating to the constitutional sort of basis or foundation for the regulatory body and having regulatory judges versus article three judges not really playing devil’s advocate here because I know why they function in their specialized, um, courts that are, that are more efficient. But do, do we have an idea Alison, what the underpinnings are for having these based in federal the, the world of limited government that is federal government?
Alison Gill: Sure. Well, they’re authorized, these are part of article two of the Constitution, which deals with the executive branch. So they’re part of the executive branch. So they’re part of the president’s duty to, you know, execute the laws of the land . And so, you know, they’re, they’re not strictly under the authority of article three of our constitution, which deals with judges. There’s a different set of rules that apply. Getting back to how they’re often portrayed as universally bad. An attack on regulations is really an attack on federal power. If you’re saying all regulations are bad, you’re really saying you don’t want the federal government to do anything like anything because that’s how it operates is through regulations. So of course regulations can overreach and we’ve all know that there could be a lot of red tape and I’m not here saying that they’re all good because there’s a lot of stupid regulations out there that shouldn’t exist. They’re usually created for a logical reason. And sometimes that changes over time and regulations are not always kept, you know, in a way that’s useful or sometimes they’re changing. They’re implemented because of special interests or political pressure and they’re not actually good, but that doesn’t mean that all regulations are bad. It means it’s a nuanced topic and you can’t paint with a broad brush. So let’s talk about the Trump administration, always a fun topic. So throughout the gov, throughout the Trump administration, they stripped away rules protecting the separation of religion and government. That was one of the main focuses. And often this was in an effort to send more government money to religious organizations and activities. So both channel more government money to religious organizations and also make sure that there’s no strings tied to government money so that religious organizations can use it in ways that violate church state separation or whatever they wanna do with it. So their hands are completely open to use the money, however they want. I see that over and over again. I’ll give you a couple examples in a minute, but they also created or broadened religious exemptions in regulations. So created new ones or just widened existing ones. And they relied upon these outlier cases. Like they’d get like one judge in Texas, who we can probably all name, to issue a really wacky ruling. And then they’d say, see, a court said this, therefore it’s gonna be the new rule of the land even though every other court that’s ever looked, the issue says the opposite. And so, uh that’s they did it over and over again, trying to push like this radical agenda into, into regulations wherever possible. And or there was purposeful breast representation of cases sometimes to announce sweeping new rules. And this means that the changes as the Trump administration often lacked authority, which makes them more susceptible to being challenged in courts. And they very much were challenged in courts. Many, many were stopped or overturned. However, at the same time, you have to remember the Trump administration was working to stack the courts. So they were hoping and relying on the fact that over time they’re getting more and more judges which will uphold or just ignore really bad rules. So let’s go over a couple examples. I think Monica, you wanted to talk about one.
Monica Miller: So I guess the one that I wanted to lead with was really just the faith based social services. One of the major ways that the federal government provides social services to those in need is through grant programs that gift nonprofits and other organizations, these can range from like food banks and after school programs, obviously training education, um, home buying assistance, help for immigrants, and billions of dollars of go to these programs annually.
Alison Gill: That’s exactly right. And you know, when we say the government is offering services, most government services are operated through this way. And so it’s a really critical issue. Basically, the administration pushed to allow more religious organizations to perform these services and they revised the rules to prevent or erase even hypothetical barriers that were not actually preventing any religious organizations from participating. So ideologically, they had this idea or this thing, they kept saying that we really need more religious organizations doing this. And I object to that entire premise, honestly, like why is it critical that religious organizations are providing the services when there’s plenty of other non-profits that can do it? Like why is it essential to get more religious organizations, but putting that aside, right. They did lots of other things that were problematic here. For example, they’re gonna move the requirement to provide notice to beneficiaries of programs of their rights under the law, and also, for people to request referral to alternative providers. Now under previous rules under the Obama administration, if a person preferred not to go to a religious provider for whatever reason. And I think we can all think of lots of reasons why someone might not want to go to a religious provider to receive government services. They must be referred to by the service provider to an equivalent other service provider to receive these services. People might not want to go to a religious provider for example, if they object to sort of seeing a lot of religious iconography and other materials, while they’re, while they’re trying to receive services, maybe the only service provider is one that is discriminatory and they’re LGBTQ, and don’t want to go to one that’s actively fighting against their rights to receive services, or they believe that they’ll encounter discrimination or they’ve previously encountered discrimination there they’re not supposed to, but some religious providers require that they actually participate in worship or proselytization or whatever in order to receive services. And that’s not legal, but at the same time, right, it does happen. Right?
Rebecca Markert: I also wanna just interject here because I feel like at one point when I was traveling around the country talking to different atheists and agnostic groups on college campuses, I had a conversation with someone, a student who was like, you know, if the government’s not going to provide like these types of services, then I don’t care if a church like jumps in and runs a soup kitchen and things like that. But I think what people fail to recognize is the proselytization that goes on at some of these services. I mean, I recall when I was in DC working on some lobbying issues for FFRF, I met with people in the leadership conference for civil rights. And I heard stories about people who participated in these services that were run by religious organizations and having horrible things happen to them where, you know, they wouldn’t take people who needed assistance going to the bathroom. They wouldn’t take them to the bathroom until they were done reading a Bible verse to them. And you were talking in large part about really vulnerable populations who need this type of assistance. And these faith-based organizations are providing these services, but also interjecting just really horrible proselytization and things like that that are just sort of insidious and awful. And if you hear about those types of stories you really would be like, I don’t know why the government is contracting these services out at all.
Monica Miller: Yeah, absolutely. I have a sort of a minor example of that when our lawsuits was, a school in Joplin, Missouri, they claimed to be unable to find a gymnasium suitable for these children to go on a field trip. And so the only available like big gymnasium was called Victory Gym and the parents had to sign a consent or a waiver saying that they consented to proselytizing at this venue that was not government run. I don’t see stuff like this in California, we have regular gyms, but it was like Jesus and basketball. You have this just regular looking gym with sports stuff and a foam pit trampoline, whatever. And then just like all sorts of Jesus, propaganda everywhere, and missionaries coming up and talking to your kids. And, you know, once they found out that this was not an ordinary field trip, we sued and we won back in the day, at least under existing precedent. And so it, there was there’s real life examples of when the government doesn’t, uh, provide the service. Like let’s just say a gym. And this is, and this is such a benign example. The examples we just enumerated are food related, housing related, like basic needs that aren’t being met by the government, you know, are now being put into religious hands, but we’re funneling that money through the religious hands with our government dollars. So it’s not, it’s not, not our money. It’s just how it’s being channeled.
Alison Gill: And sometimes it’s not even purposeful. It’s just built with a certain religion in mind. It’s not applicable to others. And I’ll give you an example of that. I heard about a situation where there was a, uh, an organization that received the government contract, you know, funding basically to help refugees find jobs, which sounds great on its face. However, they were mostly serving Muslim immigrants and the jobs, the only ones they had available were at pork packing plants. So they would try to place all these Muslim immigrants of pork packing plants, which obviously did not work super well.
Monica Miller: It’s not incredible with their fundamental tenets of their religious faith.
Alison Gill: Exactly, exactly. So anyway, um, yeah,
Monica Miller: No, that’s a good example.
Rebecca Markert: Just like providing a soup kitchen, like there are some really insidious examples here of things that are done to really vulnerable citizens.
Liz Cavell: So we’re talking about here or what Alison and Monica were describing here as an example of one of the regulatory actions that the Trump administration used to basically needlessly bolster religious organizations, was to take away all of these sort of protections that were embedded in the regulations that would stop the kind of thing that Rebecca’s describing tying federally funded services, trying to make it so that they would have to be provided in a non-discriminatory manner or without requiring religious practices as strings attached to the aid and the services being provided. So the Trump administration’s coming in and wherever they can in the, in the regulations undoing all of that and making it so that religious groups can receive funding to provide services, they can do it in a discriminatory way you know, they can do it without any sort of federal compliance
Alison Gill: Right now you know, these abuses happen, but basically they’re supposed to be mechanisms to take care of them and one of the most important mechanisms is you tell beneficiaries that they’re protected under, under the law. Now the Trump administration did not remove that component. You’re still not supposed to be able to proselytize or force people to engage in religion in order to get services. However, if you never tell people that, and then they go ahead and require it, then how are they gonna know their rights to enforce them? So that’s what they did. They got rid of the notice requirement. And that’s one example, and also the referral requirement. Another example of what the Trump administration did is around Title IX, religious exemptions. This is an example where they broaden existing regulations. So Title IX, prohibits discrimination in education on the basis of sex for any program that receives federal funding. And it has a religious exemption that exempts any educational organization controlled by a religious organization from any requirement that conflicts with their religious tenets so under the Trump admin, what they did is they redefined control by a religious organization to be this incredibly broad like multifactor sort of test that includes people that are no way controlled by a religious organization that basically just a spouse, religious ideas, basically sweeping in more colleges and universities. So they can just claim that they’re religious without having any connection to a religious organization or merely imposed religious rules. And there’s no precedent or authority cited for this. They just did it, you know, so it’s really important because these protections, I mean, they do a lot in schools. Title IX protects people based on from sexual harassment, it protects LGBTQ students. it protects, you know, women and access to reproductive healthcare and a variety of other things. So it’s really critical. I wanna cover a couple more, but I could do these all day, so I’ll try to limit them. I’ll just do one more, but
Monica Miller: These are important. Cause I do think these are where the rubber meets the road and what makes kind of regulations feel like they’re important? You know, like how does this affect us? I think our listeners benefit from these definitely.
Alison Gill: So one issue actually that American Atheists and Americans United are litigating together is another rule by the Department of Education, basically saying that public colleges and universities are required to recognize and give privileges and support to religious student groups. Even if they fail to follow all the rules that other non-religious student organizations have to follow. For example, even if they discriminate or don’t accept certain students or don’t allow them to be leaders, most public colleges, universities have non-discrimination requirements. So basically they’re saying you have to give them special privileges, even if they discriminate in violation of your own policies. So there’s no authority or case law that supports this whatsoever. In fact, there’s a Supreme Court case, Christian Legal Society v. Martinez, which says the exact opposite of this schools can impose reasonable non-discrimination rules. So this is one example. Now we’ve heard that the department is going to be rescinding at least in part, this rule so that’s coming forward. But this is an example where the Trump administration sort of put forward a rule that a lot of the organizations, and there’s a lot of political pressure on the, on the conservative side, pushing for these, um, these student groups. And so that’s probably why they did it, but at the same time, there’s no authority for it. So it’s one, hopefully we can get rolled back. And the last one I wanted to talk about is the denial of care rules. So this was a really extreme example. There are several places in federal law that prohibit federally funded health programs from requiring doctors and staff from participating in certain procedures. So they can’t require participation, things like abortion, sterilization, end of life care. Those are denial of care laws at the federal level. So it’s really a patchwork. It applies in different circumstances and different, you know, issues. However, what the Trump administration did is they tried to weave this patchwork into a broad rule that gave health providers and religious health organizations the ability to deny care in sweeping ways across the board, without authority and which they called the conscience rule. So they wanted to reframe this as a matter of conscience and basically allow them to, you know, basically deny care whenever they wanted to. This rule was quickly struck down in the courts because it went so far beyond statutory authority, at least for now, but we’ve seen numerous states sort of pick up the mantle here. And then in the past couple years passed laws that are essentially equivalent to this. So it’s one thing we see sometimes anyway, that’s it for the Trump administration. For now!
Liz Cavell: One example that came up when we were kind of prepping through for this episode that I was trying to ground myself in the real world of what I remember from the Trump administration. Was back when, remember that time in our country when Jeff Sessions was the attorney general and it was awful. This was back in 2017 and kind of part and parcel of this whole Trump administration like crusade to expand religious exemptions and rights was this Jeff Sessions, Justice Department memo about religious liberty. And if you guys remember, it also led to the much parodied Religious Liberty Task Force that was created under in the AGs office to sort of implement that memo, which laid out kind of these broad principles of quote unquote religious liberty, which was basically a bunch of religious exemptions, basically giving license to discriminate in all these different areas of administrative law. And so that was one kind of real world thing. You know, you might have seen it in the news as Jeff sessions, policy memo on religious liberty and really what it’s going on behind the scenes and what he’s tackling are all of these different administrative regulations and ways that the executive branch, the Trump administration could really expand religious exemptions from anti-discrimination laws.
Alison Gill: That’s a really good point. It’s not itself does not have the force of law, right? Because it’s just a memo from the attorney general, however, what they did in the DOJ and others, they passed rules sort of referencing it and incorporating it into the law and saying, this is now going to govern our policy moving forward. And it was just this list of like what they want the law around religious freedom to be as opposed to actual supported statements. So it’s quite ridiculous, right? And that’s still an effect by the way. They have not repealed that.
Rebecca Markert: Well, that’s what I wanna, I guess, transition to us, transition us a little bit here to the present day. So Trump did a lot of very bad things with regulations in demolishing the wall of separation between state and church. So what, if anything, is Biden doing to roll back some of these really awful regulations and really protect people who are of religious minorities or people of no faith?
Alison Gill: Well, that’s a great question. And they’re doing quite a lot to sort of roll back these Trump administration regulations. However, it is a slow process and it’s complicated by a number of factors. First of all, there was new case law built upon Trump’s regulatory changes. So they litigate these changes there’s been, especially with there’s new ideological courts. There’s been more changes in the law that make it more likely that these are difficult to roll back or reverse. And also because the government was litigating with these rules in place, they have more legal support now. So it can make it difficult to go back to the old rule a lot of times. Sometimes the old rule, you know, they need to reimagine what it looks like. And I’ll just say Trinity Lutheran, for example, and a lot of the cases around funding and basically requiring grant programs to include religious organizations. And also because of the conservative legal movement, every new regulation, the Biden administration puts out, the vast majority of ones that are even slightly controversial are challenged. And the judiciary has been stacked, especially in places like Texas and Florida. So you can have one judge in Texas, maybe for example, hold up rules for years or even strike them down for the whole country with very little authority. So that’s part of why it’s really challenging. For example, under federal law, non-discrimination law does cover sexual orientation and gender identity. Well, that’s been held up for years, including in healthcare. That’s been held up for years because of these court decisions in places like Texas. Sometimes also the Biden administration doesn’t seem to want to reverse some rule changes, maybe because they’re worried about political backlash or it’s just not a priority. But the net effect is that the church state separation is eroded very heavily by administrations like the Trump administration and only sometimes repaired under democratic ones, but over time, these protections really have been eviscerated unfortunately.
Liz Cavell: I was trying to think like what’s an example of what Alison is saying because just asking for a friend who maybe doesn’t understand why this is so complicated. And I was just thinking, and it really matters so much that the courts have been stacked or were stacked by the Trump administration with just absolute partisans who are really just going to push hard to make sure that regulations that ultra conservatives do like are not able to be undone and regulations that they don’t like are ruled to be somehow unconstitutional or outside the power of the executive branch. So, and one example of that was if you guys remember reading about, there was like a judge that blocked Biden from undoing one of the immigration regulations at the border. And I think it had to do with Title 42 and the Trump administration used some regulation to basically stop taking in asylum seekers, like under COVID. It had to do with public health and safety justifications and when the Biden administration tried to undo that, I think after extensive public pressure, there was a Trump appointee in a Texas federal court that said actually no Biden administration, you can’t undo that. And so I think that’s really like it, it just shows the power of a biased federal judiciary because like this is literally, we’re talking about agency regulations, which for better or worse are supposed to be under the power, the executive branch. But when you have judges in federal courts that are gonna step in and say, actually this particular regulatory action can’t be undone for whatever reasons or, you know, these agency actions were unconstitutional or they exceeded President Obama’s authority or Biden’s authority. It’s another place where the deck is being stacked politically. And the courts have a lot of power to do that and to really skew the way agency regulations can and can’t be binding on one party versus the other.
Alison Gill: Well, another good example would be faith-based social services. For example, the notice requirement that you have to inform beneficiaries of their rights, not to be subject to proselytization or religious worship to receive services only applied to religious organizations. So because of, you know, court cases and rulings in places like Trinity Lutheran and masterpiece, there’s some, I think fairly justified concern that if you put a requirement only on religious organizations, the court might strike it down. Uh, oh. And also of course the Tanden case. Anyway, if you put requirements just on religious organizations, even though it only makes sense on religious organizations, because the other ones aren’t doing proselytization, but whatever it might be struck down. And so we had to make a recommendation as they consider revising this, that basically, well, make everybody provide notice, right? That way we don’t have that problem. Now notice it’s probably gonna happen most by religious organizations, but at least we get around that aspect of it. But that shows you how changes in the courts need to be reflected in what we’re thinking about when it comes to advocacy, when it comes to administrative agencies.
Monica Miller: So Alison, what regulatory issues should we pay most attention to in 2023?
Alison Gill: HHS has an open comment period, which I’ll talk about more around the Affordable Care Act, ACA Section 1557. So this is the non-discrimination rules that apply to healthcare. And you know, one thing the Trump administration tried to do is put in really broad religious exemptions into the non-discrimination requirements, but these rules provide stronger non non-discrimination protections and federally funded healthcare. And they also limit the religious exemptions to what statutorily required. So, it’s much more narrow than what the Trump administration wanted to do. So that’s a really important rule and that’s open right now. We’re encouraging people to submit comments on it actually, before I go on, let me just talk about that. So as part of creating rules, what agencies do is they issue a proposed rule and then they ask the public what they think of it. And it’s usually there’s a 60 or 30 day open comment period for anybody who cares about the rule to submit comments on it. So, a lot of us organizations submit comments. They’re usually very detailed and legally about what the rule does and doesn’t do and why it’s important or we need to change it. And also sometimes people that, you know, are just average folks and people that care about the issues submit comments as well. And one thing we do is create action alerts. So we have systems so that you can just know about when a comment period is open and it creates like a draft for you to easily, you know, alter if you want to, but otherwise just submit. American atheist has an action work system, and this is one of the ones that’s currently open. And do any of your orgs have one as well?
Monica Miller: We lean on sort of the general lobbying efforts of SCA and you know, all the org, sister org groups. But, that was sort of something I was also gonna ask, is there like a digest that kind of lists all of the progressive kind of regulations or does it have to be like environmental? Is it, is it compartmentalized? Like would we have to go to the Sierra club if we wanted to follow environmental regulation stuff?
Alison Gill: It kind of would, unfortunately there is no one stop shop for everything happening in. Well, I mean, there’s just so much regulation that happens. You know, because there’s more agencies than you could ever imagine. And they’re all doing something all the time.
Liz Cavell: I will just say what we’re talking about right now, what Alison’s describing as the like public comment period. This is the pressure point for where the public can actually weigh in and influence what the law that’s being made throughout through this process. because you hear us describing what rulemaking is and how it happens and you, it, you kind of think like, well, why would I pay attention to that? Because I’m completely powerless, like it’s happening by executive action or it’s just the implementation of laws that have already passed. And it’s just a bunch of agency people making rules. But all of these rules are, by law, going through this public comment period where members of the public can just weigh in with their comments on the proposed changes before they go into effect.
Rebecca Markert: Then it is very important and it’s a way for our people to get engaged with this process. But what do the agencies do with that public comment? Alison, I mean, how effective do you think individuals going into the portal or responding to one of our action alerts saying, Hey comment on this proposed rule, how effective is it for the agency when somebody’s submitting something like that?
Alison Gill: So, very. You know, you have to understand, in a lot of these rules, it’s not just, you know, our side, people that care about these issues, it’s also the opposition. And so you’re getting a lot of feedback from them as well. And they have well organized groups with lots of money that can really push out comments so they can submit tens of thousands, hundreds of thousands of comments sometimes. And if agencies are only hearing from one side, then you know, they’re much less likely to actually act, they might roll things back. They might be less aggressive than they need to be because you know, it’s a little bit of extra effort to go through this and submit a comment. It shows that you’re connected and actually care about issue to at least to some extent. And so, but a lot of people taking action, it shows that it’s important to at least some people, even if they’re the same comment, even if it’s like a form comment, it shows that there’s interest from a large swath of people and you know, it really does matter. There’s also a part of the Administrative Procedures Act, APA, we were talking about earlier. That says that the agencies must consider and respond to all comments. Now, if they get 20,000 that are basically the same, they don’t have to respond each individually, but they do have to address them generally. And they must do that when they’re issuing the final rule. And so this is another really important way basically if they fail to do so that opens up the doors for us to sue them and say, you failed to address this. So that’s one of the, another reason why it’s really important.
Monica Miller: I was just gonna interject and say, you know, I know through the environmental realm, that was sort of my introduction with admin law was in environmental law school. And my ex was working at different environmental agencies in the government. And he was often leading or going to these public comment periods as like the government guy taking in the feedback. And it was at least in the environmental realm, it is like been the, it has been the difference between like whether, you know, like a forest like, or, you know, like a park gets chopped down or not. It really can have a major influence to submit these public comments. And as Alison was saying, you know, it’s, it’s built into the APA. It is democracy at work. Like it forces the, the agency to pause and to consider what you’re saying, like they maybe they don’t take it into account, but then they’re, they’re opening themselves up to litigation when they don’t. So even if they think they’re on the right side, they still have to balance out what the, you know, what the comments are and, you know, the, the effects of what they’re about to do.
Liz Cavell: And just to ride along on something Alison was saying, and what Monica’s kind of capping off is the, it is like a way, the only way in agency rulemaking, where there can be sort of people, power and grassroots efforts that can counteract like in every area of law making in our country, special interests are very deeply involved in agency rulemaking. And Alison was saying this at the, at the top of the episode, like there are rules and regulations are not bad writ large, but just like every area of lawmaking, there is, there are bad actors and special interests that are wielding a lot of influence over how rules get made and what rules get made. And so it is really important for there to be sort of more of a, or a way for people, actual human beings and, you know, grassroots movements to have some influence over this process. And this is really the only place where I think we can do that. And my second point is kind of triggered by that point, which is, and what Monica was asking is like, how do you hear about these things? If you follow organizations like ours, and if you follow organizations that work on other progressive issues that you care about, they should be alerting you to public comment opportunities and agency rulemaking that’s going on that really affects these issues that we care about that affects our lives so much. And so, um, you should kind of tune into that in the organizations that you belong to and that you follow because groups like ours are sending you action alerts to let you know, you know, public comment is open for this thing, and here’s what it’s gonna do. And you can copy and paste this comment and click here.
Monica Miller: Absolutely. I feel more convinced at the end of this episode, you know, or like whatever way through we are. But I, I personally feel convinced that this is gonna be part of what I recommend to folks when they ask, like, what can I do during this time where the courts are not in our favor and we still want, we still care about church state separation and progressive causes is because it, I say legislation and I say, you know, voting matters and, and elect the right people. And this is, this is part of that, but this is a separate, constitutional provision that allows us, the executive branch, there are rule makers in that field rather than just the president that, you know, we have real work to do. We both have to, we have to go in there and defend legislation or rule makings that are integral and essential to providing services to those who are disadvantaged, but also to push our own, you know, needs and agendas and, and the things that we care about these progressive organizations. So like all of this is to say that Alison, you’ve really you’ve convinced me of, of the need to, to get involved with regulations more. And as a leader, one of these orgs, I definitely am gonna make sure my, our humanist followers are more abreast of these regulatory changes.
Alison Gill: Yeah. Well, that’s fantastic. You know, I think people can feel like when they’re, for example, sending letters to a lawmaker, the lawmakers are often already committed to like ideologically, like one way or another. They might not bow to, you know, they might not care about public pressure as many agencies entire job is to function in the best way possible, the most optimal way possible. And to implement the law. Now they can, in some administrations, have leadership that is ideologically opposed to their issue. And I think a really good example of that is Secretary Betsy DeVos. Under the Trump administration who never saw public education that she liked, she was always trying to channel money to private education, particularly religious schools, every way possible and to undermine public education. She never set foot in public school in her life. And now she was secretary of education, but regardless, so she’s ideologically opposed to it. But like there’s career staff at each of these agencies whose entire career has been dedicated to advancing education or healthcare. And so they actually do care what the public has to say. And if you have a personal story that relates to an issue and a comment adding that can make a difference, sometimes you to get included in final rules.
Monica Miller: That’s so true.
Alison Gill: That that’s really, um, it’s a very different sort of environment, but it’s just as critical as, as those things
Monica Miller: Outreach, it seems, well, it seems more, and it seems like your ability to influence. And I think this applies equally if I’m not wrong, but on the state level too. because when I was referring to my ex with his environmental enforcement stuff, it was at the Maryland state level, but I also have friends that work for the DOJ and the EPA. And with regard to what you’re saying, Alison, the people that work in these agencies tend to care about the issues that they’re working on versus like a legislative, you know, a legislative official who’s kind of a popular face, like to the issues that their party has elected them for. So they kind of stick with their party regardless of the reasons behind what they’re doing and what you see in these at least not, you know, across the board administrations, but like, or, executive agencies, but is, is like folks that went to law school to do this kind of law, whether it’s, you know, like defense law, like if they work for JAG or, you know, if they, you know, I, I’m only friends with like the environmental folks, but like they went to law school to do environmental law. And so my friends that work at DOJ and EPA are doing exactly what they want to do when they’re listening to the rule makings and attending those, they’re wanting to know what people think and are concerned with. So, yeah, it’s very different, a different role and a different target audience. So you’re like not just annoying your legislature, it’s going to a vacuum. It is going to a person like a human being that we probably could have gone to law school with that wanted to go in that pathway. So you’re talking to experts too. They’re not just lay people that got elected. A lot of these folks are presumably you know, experts in housing or except for what you know, under Trump’s administration of course.
Alison Gill: Well even then you still have the rank and file staff that have been there for years that go from one administration to the other. So I think that’s also an important point very much. So, you did bring up one thing I wanted to talk about, which was state administrative agencies. So, you know, we’ve been mostly talking about federal, but states also have agencies and you know, they’re not as formalized. I mean some states operate agencies really well. They have solid rules. Some states sort of it’s a little loose. Some states are really defined by what’s politically expedient for the governor. So it’s not, I mean it can be useful to participate in state agents, administrative law and advocacy. It varies a lot by state and it’s a very different animal than federal administrative advocacy. So, but it is still worth watching and it can definitely have an impact.
Liz Cavell: We’re talking a lot about executive orders leading to rulemaking to implement executive orders and executive actions. But it’s so important too, in terms of implementing the actual laws that get passed by Congress, which are so few and far between, but at the end of the day, they pass the law and it’s like, they’re done. And now the law has to be implemented. And there’s so much that goes into that. And sometimes in the law there is, they didn’t think of everything, right? There’s like there’s unintended harm or unintended consequences. And so the thing that is jumping to my mind, because it affected me was way back when we young chickens were in law school. For me, this was like 2007, 2008. And Congress passed the still a very hot topic. The College Cost Reduction Act that established the public service loan forgiveness program and all of these income based repayment plans that we all have grown up with and lived our lives with Congress passed this sweeping legislation to enact all of these legislative schemes. And then it went to the Department of Education to engage in this massive rulemaking process in order to implement these things going forward and famously, this was a shit show because it took years. And so at the, at the time that we were all supposed to be sort of living in this repayment world, rulemaking was still going on in the department of ed, but right away, student debt activists were pointing out there were some major unintended consequences and harms that were gonna be waiting for all of us at the end of the road. A big one was the law didn’t take account of the tax burden. At the end of the road, we would all be having these huge balances forgiven. If we went through with public service loan forgiveness, most of us in professional schools, six in the six figure amount and Congress didn’t really think about the taxation consequences. And that was something that people were like crapping their pants about because this is a huge capital gain waiting for you at the end of the road. And if you’re in public service loan forgiveness, you probably don’t have a bunch of money sitting around to pay a giant tax bill. That was something that was fixed in the rulemaking process. There was also a marriage penalty in the law because of the way that they made the jointly reported income count as the household income against the debt. And that was something that was made to comply with the spirit of the law in the rulemaking process to address some of these just unintended consequences that clearly were not meant by the spirit of the law. So like that is something that’s really cool and concrete that is done in the rulemaking process that we don’t think about, but that really, really affects us when we’re gonna avail ourselves of these pieces of legislation that have so much potential, but have to be implemented.
Alison Gill: You hit upon a really important point and administrative law actually, which is that when there is vaguery in the law, when there is, you know, these situations that arise that basically the Congress did not speak to, then there’s, what’s called deference to the agency’s interpretation. So the agency is able to fill in the gaps and the courts are supposed to say, okay, well, you’re the ones who administer this. The statute is vague. We’re going to defer to your understanding. This is completely off the wall, right? And so that’s been in existence for a long time. Chevron deference is what it’s called. And one of the ways I talked about how conservative courts are undermining administrative law, that is, one of the major ways is by rolling back or an attacking deference, because basically it draws more power to the court to say, well, it doesn’t really matter what the Department of Education said, we get to second guess everything and make the law a new. And we like it our way better. So that, that’s what we see in a lot of the ideological courts these days. And a lot of their rulings, what they’re doing really is drawing as much power to themselves as possible. And that this way both they stop the agencies from having power and the courts, which are biased, have more power.
Liz Cavell: Right, right. That’s so important. And as is their whole kind of ideological deal is just increasing the power of the federal courts in every possible way. And this is a way that is so important and sort of shadowy, like a lot of the things that this court has been doing, it makes sense that we would defer, or we would have our courts defer to agency interpretation of laws because they have expertise. It is like literally all they do, they are more removed from the political process and it’s their whole job to implement laws with the intent of the legislation and the legislators in mind. But so it makes sense that this judge at the end of the line, who’s reviewing all of this after the fact is probably not the best placed person to use their own judgment in how the law should have been implemented in the first place. But of course, this is what our Supreme Court thinks it should be doing.
Alison Gill: Thanks, Liz, that’s a fantastic point. I think we’re going to wrap here on today’s episode about regulations. We hope you’ve enjoyed this incredibly not dry topic. Thank you everyone. I’m Alison Gill
Monica Miller: And I’m Monica Miller.
Liz Cavell: I’m Liz Cavell
Rebecca Markert: And I’m Rebecca Markert. Please follow us on Twitter and on Facebook. Find out more about the podcast online we-dissent.org. Thanks for listening. We Dissent is a joint production of the Freedom From Religion Foundation, American Atheists, and the American Humanist Association. It is hosted by Liz Cavell, Alison Gill, Monica Miller, and me, Rebecca Markert. Other production support comes from James Phetteplace and Greta Martens. Audio engineering is provided by Audio For The Arts in Madison, Wisconsin.
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