…from its birth defects.

A great analogy.

Congress has no authority to grant bureaucrats such discretion either way. It cannot simply hand over its powers to another branch of the government. That is the subject of a recent book by Columbia Law School professor Philip Hamburger, Is Administrative Law Unlawful? Hamburger’s thesis is that federal agencies are under the control of the executive branch and, by definition, have no power to create regulations that legally bind anyone. That is, of course, precisely what HHS attempted when it drew up its list of “must cover” contraceptives.

During oral arguments in Burwell v Hobby Lobby, Justice Kennedy was obviously interested in this issue and its implications for the separation of powers. Among his questions to the government lawyers was the following: “Now, 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?” According to Hamburger, it gives us a structure more like that which England’s James I presided over than anything envisioned by the framers.

The latter favored a very weak executive branch. In fact, according to Hamburger, they didn’t want it “bringing matters to the courts or … physically carrying out their binding acts.” This is why the Constitution is so specific about the separation of powers. The framers must have been spinning in their graves when the government lawyers were arguing Burwell v. Hobby Lobby and Halbig v. Burwell. But shady deals like the cornhusker kickback and violations of the separation of powers doctrine are but two of the birth defects with which Obamacare was born.

And, as he notes, the Origination problem will be potentially fatal as well.