Shortly before leaving office, the Trump administration enacted regulations that greatly weakened protections for religious minorities and nonbelievers who receive federally funded social services through religious organizations. Under previous regulations, enacted by the Obama administration after lengthy negotiations that included faith-based organizations, beneficiaries of federal social-service programs were entitled to notice of their rights not to be religiously proselytized or coerced. Beneficiaries were also entitled to referral to an alternative provider if they objected to a provider’s religious nature. The Trump administration’s last-minute regulations eliminated these protections. The Trump regulations also allow religious service providers that are funded with vouchers to require beneficiaries to attend religious activities in order to receive benefits.
On January 19, 2021, together with our co-counsel Democracy Forward and Lambda Legal, we filed a lawsuit challenging the new regulations: MAZON: A Jewish Response to Hunger v. HHS. We have sued the U.S. Departments of Health and Human Services, Agriculture, Housing and Urban Development, Veterans Affairs, Education, Homeland Security, Justice, and Labor. We contend that these agencies violated the requirements of the Administrative Procedure Act, a federal law that mandates that rulemaking agencies engage in reasoned decision-making. We argue that the agencies did not give good reasons for the rule change, failed to consider the benefits of the old regulations, failed to consider the harms the new regulations will inflict on vulnerable communities, relied on internally inconsistent reasoning, failed to consider alternatives to the new regulations, and failed to act consistently with an applicable executive order. The rule is thus “arbitrary and capricious” and should be vacated.
In October 2021, after the Biden administration announced that it is considering potential changes to the challenged regulations, we agreed to temporarily pause the case. On January 12, 2023, the Biden administration proposed to replace the challenged regulations with new regulations that, if enacted, would substantially improve religious-freedom protections for people who use federally funded social services. The case remains on hold as the Biden administration works to finalize the new regulations.