Will the Obamacare Decision Affect the HHS Mandate?


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ABSTRACTWill the Obamacare Decision Affect the HHS Mandate? - By Mark Rienzi - The Corner - National Review Online Get FREE NRO Newsletters   Log In   |   Register Follow Us Everywhere         April 16 Issue  Subscribe to NR  Renew  April 16 Issue   |   Subscribe   |   Renew Home The Corner The Agenda Campaign Spot The Home Front Right Field Bench Memos The Feed Media Blog Critical Condition Larry Kudlow David Calling Exchequer Phi Beta Cons Planet Gore UK Between the Covers Radio Derb Tweet Tracker NR / Digital Subscribe: NR Subscribe: NR / Digital Give: NR / Digital NR Renewals & Changes Shop! Donate Media Kit Contact Close To: Your Email: Your Name: Subject: Costa: Rick Santorum’s Long Goodbye Editors: The Emperor Has No Plan Capretta: Unsubstantiated Budget Attacks, the Sequel Ponnuru: The Impropriety of Obamacare Interview: Peace Is the Word Fund: President Petulant Loyola: The EPA Abuses First, Apologizes Later Epstein: Cue the Boys of Summer 2012 Goldberg: Romney’s Savior Tanner: Conservatives and the Courts Sowell: Political Word Games Malkin: The Democrats’ Election Forgery Racket Zubrin: Carbon Emissions Are Good Derbyshire: March Diary Costa: The Ron Johnson Factor Hanson: Iran’s Win, Win, Win Bomb Habeeb: Too Young to Die Sowell: Argument from Disparity Charen: Violence and Family Breakdown Fonte: Saving Sovereignty New on NRO . . . The Corner The one and only. About This Blog Archive E-Mail RSS Send Print   |  Text   Will the Obamacare Decision Affect the HHS Mandate? By  Mark Rienzi April 2, 2012 10:06 A.M. Comments 0 Last week’s Supreme Court arguments over the Affordable Care Act focused on the constitutionality of the individual mandate and the expanded Medicaid entitlement. Could those cases also affect the religious-liberty lawsuits challenging the HHS abortion/sterilization/contraception mandate, which are now pending in many federal district courts? The short answer is: Maybe. The Supreme Court is expected to rule on its cases by the end of June. If the Court sides with the government — either finding that the plaintiffs came to court too early (under the Anti-Injunction Act) or that neither the individual mandate nor the Medicaid expansion violates the Constitution — then its decision will likely have no effect on the religious-liberty cases. Simply put, in that scenario the most the Court would be deciding would be that the statute survives the particular constitutional challenges it considered this week. The HHS mandate is a separate rule, and it is being challenged on grounds entirely different from those the Court considered this week. So even a 9–0 win for the government at the Supreme Court would not derail the religious-liberty cases concerning the HHS mandate. What if the Court finds that some part of the health-care law is unconstitutional? That’s where the analysis gets more interesting. If the Court decides that the unconstitutional part of the law is “severable” — i.e., that the Court could invalidate just that part of the law but leave the rest of the law in force — then the ruling would probably not affect the religious-liberty cases. But, if the Court decides that the entire statute needs to be invalidated, then the decision would be an immediate win for the religious-liberty plaintiffs. HHS only has authority to issue regulations forcing employers to pay for “preventative” care because of a particular provision in the health-care statute itself. If the Court invalidates that statute in its entirety, then the regulations HHS has issued under that statute would immediately be invalid too, because HHS.......