During oral arguments, Justice Kennedy raised the point that it was the Department of Health & Human Services (HHS)—an administrative agency that is a part of the executive branch—that created the contraception coverage requirement, not Congress.  The ACA called on HHS to work with the Institute of Medicine to decide which services needed to be included in health plans to satisfy the ACA’s requirement that women’s preventive care be covered without copay.  In this clip, Justice Kennedy asks, with respect to an issue as significant as the First Amendment, “shouldn’t we indicate that it’s for the Congress, not the agency to determine” the exemptions to the ACA’s contraception coverage requirement.  He wonders aloud, “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?”  Solicitor General Verrilli responds that the government has only given churches an “exemption” because of their “special solicitude” under constitutional law.  Nonprofit religious organizations receive “accommodations” rather than “exemptions,” Verrilli argued, because employees still access birth control, just not directly from their employer.  Similarly, Verrilli argued that employers with fewer than 50 employees are not exempt either; if they provide insurance, they are subject to the same requirements as larger corporations.