Bench Memos

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The HHS Mandate and Obama’s Unconstitutional “Insurance Seizure”


In the new issue of the Weekly Standard, law professor Michael Stokes Paulsen argues that President Obama has no legal basis for his “announced … intention to order private insurance companies to provide contraception and abortion drug coverage free, as his way of ‘accommodating’ religious institutions’ conscientious objections to being forced to provide their employees coverage of those items under Obamacare”:

Like [President Harry] Truman six decades ago, Obama has proposed in effect to seize a national industry and tell it what to do, without any warrant in enacted law. Like Truman’s steel seizure, Obama’s insurance seizure is flat unconstitutional—as unconstitutional as anything any president has attempted to do—and Obama does not even have Truman’s excuse of a national security crisis.

As Paulsen spells out, the proposed “accommodation,” beyond being “an obvious and outrageous abuse of presidential power,” is a “ruse” that “does nothing to cure the violation of First Amendment religious freedom.”

If anyone has tried to make the contrary case—that Obama has legal authority to order insurance companies to provide contraception, sterilization, and abortifacients for free— I’d be interested in seeing the argument.


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