Rule of Law

Tennessee v. Becerra

In Tennessee v. Becerra, the United States Court of Appeals for the Sixth Circuit is considering whether Title X reproductive healthcare clinics in Tennessee can defy the federal requirement to offer counseling and referral for abortion, when requested by a patient.

Case Summary

Title X is a federal statute, administered by the Department of Health and Human Services (HHS), that provides grants for reproductive healthcare for low-income patients. For twenty-seven of the past twenty-nine years that Tennessee has received Title X funding for its state-run healthcare centers, HHS regulations have required the state’s clinics to provide abortion counseling and referral upon request. Tennessee unilaterally stopped complying with that requirement in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization—despite receiving clear guidance from HHS that the Title X funding requirements had not changed. As a result, HHS declined to renew Tennessee’s Title X funding.

Tennessee responded by filing suit against HHS in federal district court and requesting a preliminary injunction ordering the federal government to reinstate its funding of the state clinics. After the district court denied Tennessee’s request, the state appealed to the United States Court of Appeals for the Sixth Circuit, where CAC filed an amicus brief in support of the federal government.

CAC’s brief focuses on refuting Tennessee’s sweeping Spending Clause claim: namely, that it was never obligated to comply with the counseling and referral requirement in the first place because the requirement was set forth in a regulation, as opposed to a statute. Our brief makes two main points.

First, Tennessee’s argument is at odds with binding Supreme Court precedent. The Court has plainly held that federal regulations can provide sufficient notice of grant conditions. That conclusion follows from two principles in constitutional law. First, the Court has made clear time and again that Congress may delegate broad authority, including the authority to establish funding conditions, so long as those conditions are consistent with an “intelligible principle” set forth by statute—a highly deferential and permissive standard. Second, the Spending Clause is satisfied so long as the relevant statute and regulations considered together provide sufficient notice of the conditions with which the grantee must comply.

Our brief explains that those standards are clearly met in this case: the Sixth Circuit held just last year that the counseling and referral rule is consistent with the principles set forth by Congress in Title X. And Tennessee does not assert—nor could it—that it was unaware of the counseling and referral requirement when it accepted Title X funds. The counseling and referral rule, promulgated via notice and comment rulemaking, was in place when the state accepted Title X funding, and the regulation itself is unambiguous. Moreover, Title X expressly delegates authority to HHS to issue funding conditions. Tennessee thus knew to look to regulations for the terms of its grant, just like states do in countless other areas of law in which agencies are empowered to impose funding conditions.

Second, our brief explains that Tennessee’s construction of Congress’s limited authority to delegate the power to impose funding conditions is at odds with constitutional history. At the Founding, Congress delegated broad swaths of its taxing and spending power without constitutional objection. Our brief provides three examples of these broad delegations: (1) the creation of the nation’s first veterans’ benefits program administered by the executive branch, (2) the refinancing of the national debt in the wake of the Revolutionary War, run by the President and a commission of high-ranking officials, and (3) the imposition of a direct tax on all property-holders in the nation administered by a massive group of tax commissioners. Indeed, these examples illustrate that as compared to early American practice, Congress’s delegation of authority to HHS to establish funding conditions under Title X is actually quite modest.

In sum, there is simply nothing in precedent or constitutional text, structure, or history that prevents Congress from unambiguously delegating its power to impose funding conditions to executive officials—so long as those officials, in turn, comply with the Spending Clause’s clear-statement requirement, and their regulations are consistent with a statutory “intelligible principle.”  Those conditions are plainly met here, so the Sixth Circuit should reject Tennessee’s assertion that it is exempt from compliance with a lawfully promulgated regulation on Spending Clause or separation-of-powers grounds.

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