Last year after Hobby Lobby was decided, I raised the point that Congress never delegated to HHS the authority to make any decisions over which religious groups should, and should not receive accommodations. The ACA was entirely silent on this point–in large part because no one anticipated that the government would require Nuns to provide Plan B–and Congress only exempted houses of worship.

This observation got a injection of steroids after King v. Burwell, where the Court rejected the IRS’s qualifications to even issue a rule here because the agency “had no expertise in crafting health insurance policy.” In National Review, I offer an alternate grounds to invalidate the contraception mandate accommodation–HHS had no authority to issue it in the first place because they were not qualified!

Here is the introduction:

Chief Justice Roberts’s latest rewriting of Obamacare was not a complete debacle. Rather, as has become his pattern, the Chief tossed conservatives a consolation prize. The most significant, and underappreciated, aspect of King v. Burwell was that it rejected the received wisdom that the IRS had authority to redefine Obamacare. The agency, the Court found “had no expertise in crafting health insurance policy.” The IRS rule at issue in the case, which affected the price of health insurance for millions in three dozen states, was far beyond the skillset of the Treasury Department. Going forward, King puts another cornerstone of the Affordable Care Act in jeopardy. Because the Department of Health and Human Services has absolutely “no expertise in crafting” exemptions for religious groups from the contraception mandate, its regulations are entitled to no deference. The Supreme Court’s salvation of Obamacare may have also saved the Little Sisters of the Poor.

After King v. Burwell, it’s not clear that HHS has any expertise in crafting the sort of religious accommodations at issue in the unprecedented contraceptive mandate.

Whatever trivial expertise the Treasury Department may have had in “health insurance policy,” HHS had no specialization in minimizing burdens to religious liberty. Zip. Zero. Zilch. Nada. Simply stated, this was “not a case” for HHS from the outset. Indeed, before the ACA was enacted it was inconceivable that HHS would require any employers, let alone religious non-profits, to cover emergency contraceptives. Most of the attention in 2010 was focused on whether Obamacare would be used to publicly fund abortions. In researching my new book, I could not find anyone in the religious-liberties community who was concerned that the law could be used to force religious nonprofits to provide plans with emergency contraceptives. Even pro-life Democrat Representative Bart Stupak, who was a decisive leader in gathering votes to pass the ACA in the House, said that the contraception mandate “clearly violates” his understanding of how Obamacare was designed.

You may recall that Justice Kennedy raised just this point during arguments in Hobby Lobby:

Further, there is no evidence that Congress ever intended for HHS to make such delicate decisions concerning faith. During oral arguments in Burwell v. Hobby Lobby Stores, Justice Kennedy made just this point. He asked the solicitor general “what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined?” Justice Kennedy added, “Shouldn’t we indicate that it’s for the Congress, not the agency, to determine” who gets an exemption under the Religious Freedom Restoration Act? Justice Kennedy is exactly right. Congress did delegate to HHS the authority to determine which drugs should be covered by the contraception mandate. But it did not delegate to HHS the authority to delicately craft accommodations for some religious groups and not others.

From a separation of powers perspective, the entire accommodation is ultra vires, and cannot stand without an “express” delegation of authority from Congress-which there is none.  From the conclusion:

Without having to find that the accommodation violates the Religious Freedom Restoration Act, the Court could more narrowly find that the unqualified agency cannot decide who gets a religious accommodation. The legislature, and not HHS, has to go back to the drawing board to decide how best to provide access to emergency contraceptives while respecting religious liberty. This is a role for Congress, not for HHS trying to play God.

It may be worth an amicus.