Yuval, as appealing as I think your tongue-in-cheek proposal is, since it underscores how outrageous a violation the HHS mandate is, I’m afraid anything that relies on the federal courts for interpretation should be a non-starter. Very clear constitutional commands that, for example, “Congress shall make no law … abridging the freedom of speech”, or that “the right of the people to keep and bear Arms, shall not be infringed,” or that “No state shall … deny any person within its jurisdiction the equal protection of the laws”, have not stopped courts from upholding campaign finance reform, prohibitions against gun possession, or racial preferences.
The federal courts are being reshaped by the Obama presidency, thanks to the disinclination of senate Republicans to block appointees. According to Wikipedia, 126 Obama judges now sit on the Supreme, Circuit and District Courts, and there may be as many as 101 more before his term ends in 2013. I’m confident that the vast majority of Obama judges, maybe even all of them, would have no trouble holding that the HHS mandate (a) does not establish the Church of Obama as the state religion, and (b) being a neutral law of general application (i.e., it does not explicitly target religion in the text and applies to everyone equally), does not violate the First Amendment’s free-exercise clause. (I am not here addressing Ed’s arguments about the Religious Freedom Restoration Act; for now, I’m just talking about the Constitution. Also, while I believe that the mandate violates the First Amendment, we’re talking now about what Obama judges are apt to do.)
My own humble suggestion is that Congress enact a very simple bill that says, “The Patient Protection and Affordable Care Act, signed by the President on March 23, 2010, and all federal regulations promulgated pursuant thereto, are hereby repealed in their entirety.” This proposal emphasizes two crucial facts. First, the problem is not merely the mandate but the broader Obamacare statute: as the editors point out today, and James Capretta argued here two weeks ago, Obamacare gives the HHS secretary sweeping powers — often unreviewable powers — to issue all manner of healthcare dictates. The contraceptive/abortifacient mandate is only the beginning of what we’re going to see, especially if Obama is re-elected.
Second, as I’ve contended several times (see, e.g., here and here), Obamacare cries out for a political reversal — I think it a very iffy proposition that the Supreme Court will invalidate all or part of Obamacare, and no Republican president will be able to reverse the law by executive order. It must be repealed by statute — and there is no need to wait until a consensus is reached on what it should be replaced by, since repeal would just return us to the state of play on March 22, 2010, which was a lot better than what we’re now facing. The mandate should be a wake-up call to congressional Republicans that they need to be far more aggressive than they have been in making the 2012 election a referendum on Obamacare by forcing the president to veto a repeal — again and again.