USA Today: ObamaCare Constitution fight not over yet, by: Mark Rienzi

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“Last week’s decision has no impact on the religious liberty challenges to the controversial HHS mandate”

ObamaCare Constitution fight not over yet

By Mark L. Rienzi The Supreme Court’s decision narrowly upholding the Affordable Care Act as a permissible tax highlights an important aspect of our constitutional system: Even when Congress has the power to pass a law, it remains subject to the Constitution’s express protections for individual and organizational rights. That principle explains why the religious liberty challenges to the Health and Human Services contraception mandate —there are 23 cases so far— will continue despite the recent ruling. More than 200 years ago, early Americans engaged in fierce debate over the need for a Bill of Rights in our Constitution. On one hand, Alexander Hamilton and other Federalists argued a Bill of Rights was unnecessary. From their perspective, the structural aspects of the Constitution—such as limiting Congress to certain enumerated powers—were sufficient to protect individual liberty. Hamilton’s opponents argued that, even with structural limits on Congress’ power, a Bill of Rights was necessary to ensure individual liberty. They believed that a Bill of Rights would protect us from congressional overreach, even if Congress was exercising some enumerated power. Hamilton’s opponents won, of course, and we have a Bill of Rights to protect individual liberty. And despite all the disagreement on the Supreme Court about the taxing power, the commerce clause and other structural aspects of the Constitution, there seems to be broad agreement that the Bill of Rights provides additional protections for individual and organizational liberty, above and beyond the structural checks and balances in the document. That is a crucial point because it explains why last week’s decision has no impact on the religious liberty challenges to the controversial HHS mandate. The court’s decision merely said that Congress was acting under one of its enumerated powers (namely, the tax power). But it did not answer the question as to whether any particular provisions of the law, or particular regulations enacted under it, violate any individual liberty protections in the Bill of Rights or elsewhere in federal law. Chief Justice John Roberts, for example, explained that “even if the taxing power enables Congress to impose a tax on not obtaining health insurance, any tax must still comply with other requirements in the Constitution.” In other words, Congress may have authority to penalize organizations that refuse to comply with its mandates. But any penalty will be struck down if it violates “other requirements in the Constitution,” such as the First Amendment — which is one of the reasons the HHS mandate is argued to be unconstitutional. Justices Ginsburg, Breyer, Sotomayor, and Kagan were even more explicit. They wrote that “[a] mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause.” Again, that is just what the HHS mandate cases argue the mandate does: it “interfere[s] with the free exercise of religion” by forcing religious organizations and individuals across the country to violate their religious beliefs by imposing a “mandate to purchase a particular product.” The court’s health care opinion therefore leaves open the question raised by the 23 religious liberty cases challenging the HHS mandate: whether the government can force virtually all employers in the nation to provide access to contraceptives, sterilization, and drugs and devices that cause abortions, regardless of their religious objections. Thus, while the Affordable Care Act has therefore survived one legal challenge, that result says nothing about how the rules will fare in the remaining challenges. Mark L. Rienzi is senior counsel at the Becket Fund for Religious Liberty and a professor of constitutional law at the Catholic University of America. Click here to read the article on USA Today