One aspect lost in the entire Hobby Lobby debate is that Congress did not specify that employers must provide certain types of contraceptives. They required that employers provide “essential care” and delegated to HHS the responsibility for defining what drugs are included. HHS then specified that certain products must be provided. Initially only churches were exempt from the mandate, but after an uproar, provided a way for religious organizations, such as the Little Sisters of the Poor, to opt out of the coverage. But this was done as a political compromise. HHS did not assert they were required to do so under RFRA, or the First Amendment.

As Justice Kennedy noted twice:

JUSTICE KENNEDY: But you gave this exemption, according to your brief, without reference to the policies of RFRA. What ­­ what were the policies that you were implementing?

JUSTICE KENNEDY: I still don’t understand how HHS exercised its judgment to grant the exemption to nonreligious corporations if you say it was not compelled by RFRA.

Justice Kennedy raised the non-delegation doctrine in an interesting context–can we let administrative agencies decide the scope of the First Amendment?

JUSTICE KENNEDY: Now, what ­­ 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? I recognize delegation of powers rules are somewhat more abundant insofar as their enforcement in this Court.  But when we have a First Amendment issue of ­­ of this  consequence, shouldn’t we indicate that it’s for the Congress, not the agency to determine that this corporation gets the exemption on that one, and not even for RFRA purposes, for other purposes.

In other words, it may even be outside the ability of Congress to delegate this type of authority to an agency–or at the least, it must be given with some serious guidance.

The Chief Justice alluded to this point, with respect to whether Congress, or HHS, made various plans to exempt people from the employer mandate.

Well, the grandfathering is not a decision that Congress made, is it?

Paul Clement repeated this during his rebuttal:

If I could have just one second more to say that the agency point that Justice Kennedy has pointed to is tremendously important, because Congress spoke, it spoke in RFRA. Here the agency has decided that it’s going to accommodate a subset of the persons protected by RFRA. In a choice between what Congress has provided and what the agency has done, the answer is clear.

Of course, I have to chuckle at the entire notion of limits being placed on the arbitrary and capricious nature in which this law has been rolled out. I am seriously weighing writing an amicus in Halbig chronicling all of the delays, waivers, and exemptions, coupled with the absolute disregard for the APA and rulemaking, augmented by the purely political abuse of the administrative process, to argue that Obamacare is not worthy of the usual deference. Chevron need not apply.