Shortly after the Supreme Court decided Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (No. 19-431), I observed in a post that the majority “repeatedly lays out the case for why the ACA lacked an intelligible principle in delegating to a sub-agency (HRSA) what it was that health plans had to cover.” And I speculated that someone would soon take up the Court’s implicit invitation to bring a nondelegation challenge against the contraceptive mandate.

In what will likely be the first of many such challenges, that invitation has been accepted by the Becket Fund for Religious Liberty. In a case in the Ninth Circuit nearly identical to the one the Court granted cert on in Little Sisters, the state of California and others challenged the Trump Administration’s regulations providing relief from the contraceptive mandate to groups like the Little Sisters, and so the Little Sisters intervened to defend the regulations alongside the Administration. The Ninth Circuit affirmed the district court’s ruling in favor of the states, and a petition was filed seeking Supreme Court review. In light of the ruling in Little Sisters, the Court GVR’d the case.

Upon remand, the Ninth Circuit asked for supplementary briefing as to whether a remand to the district court is proper. Becket, on behalf of the Little Sisters, argued that the Ninth Circuit should reverse the district court and remand. And in so arguing, Becket raised the very points that Justice Thomas, on behalf of the Court, hinted at. Namely, that “the entire contraceptive mandate violates the nondelegation doctrine” (9). In so arguing, the brief quotes the Gundy plurality, Justice Gorsuch’s Gundy dissent (which was joined by Chief Justice Roberts and Justice Thomas), and Justice Kavanaugh’s statement respecting the denial of cert in Paul v. United States (Justice Kavanaugh didn’t participate in Gundy).

Given that Justice Alito in his Gundy concurrence in the judgment expressed a willingness to reconsider nondelegation in the appropriate case, coupled with the votes in Gundy, Justice Kavanaugh’s views in Paul, and the majority in Little Sisters, the odds seem quite high there are five votes to invalidate the ACA’s contraceptive mandate under nondelegation. More than that, whether there are five votes to work a major shift in the nondelegation doctrine will perhaps be the more interesting question.

James C. Phillips is a law professor at the Dale E. Fowler School of Law at Chapman University.