Over at The New Republic, Alec MacGillis puts forth the following claim:

The Supreme Court oral arguments on the challenge by two businesses of the Affordable Care Act’s mandates on contraception coverage have gotten the most attention today, understandably so given the import of that case for future disputes pitting claims of religious freedom against duly legislated laws.

To digress for a moment, I should say that I’m always a little suspicious of the phrase “duly legislated” or “duly enacted.” It’s one of those redundancies that is designed to make a claim sound more impressive and more official — almost to infuse what is a question of standard process with a sense of specific virtue. Before the series of delays became too embarrassing even for them, Obamacare’s apologists loved to shout about its being “a law that was duly enacted and upheld by the Supreme Court,” often as the overture to implying illiterately that any attempts by legislators to change or repeal that law were beyond the pale. Funnily enough, they never spoke about DOMA in those terms, and nor did “upheld by the Supreme Court” get the same treatment when it pertained to, say, the Citizens United decision. Odd.

Anyhow, that’s its own post. The reason I bring up MacGillis’s words is they are indicative of a misleading claim that has received a lot of press. Let’s look at them again:

The Supreme Court oral arguments on the challenge by two businesses of the Affordable Care Act’s mandates on contraception coverage have gotten the most attention today, understandably so given the import of that case for future disputes pitting claims of religious freedom against duly legislated laws.

The contraception mandate is not a “duly legislated law” but the product of a decision made by the executive branch. One can argue that the executive has wide latitude under Obamacare to make such calls — and, as a general matter at least, one would seem to be right. Nevertheless, as Talking Points Memo’s Sahil Kapur reports, pretending that executive regulation and legislative language are the same thing does not always fly in court — especially when that executive regulation has been inconsistently applied.

“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?” said Justice Anthony Kennedy, echoing frustrations expressed by Republican lawmakers. “When we have a First Amendment issue of this consequence, shouldn’t we indicate that it’s for the Congress, not the agency to determine that this corporation gets the exemption or that one?”
At issue during the oral argument was the validity of Obamacare’s requirement that employer health plans cover emergency contraceptives for female employees at no extra cost. Amid an uproar in 2012, Obama bypassed Congress and carved out an accommodation via executive fiat to let religious nonprofits opt out of paying for the contraceptives.
Kennedy invoked that exemption and wondered aloud if it damages the White House’s case that the birth control regulation is justified by a compelling interest . . .

This is especially important given that the plaintiff’s case rests upon the argument that the measure contravenes an actual “duly legislated” statute, the Religious Freedom Restoration Act of 1993.

Politically, it is understandable that the mandate’s backers are casting the case as a battle between a secular law and a few ornery religious dissenters. But that doesn’t make it true. In reality, this is a fight between two laws: one explicitly passed by Congress the other issued by the executive branch by virtue of powers extended to it by Congress, and then selectively applied. That this is the case by no means suggests that the administration is wrong, nor does it predict how the court will decide. It does, however, tell us that to conclude that we are discussing Religion v. the Law here is to make a rookie mistake. We’re not. We’re discussing the structure of the government and the hierarchy of the rules — and no amount of hypberole or obfuscation is going to change that fact.