Under threats from congressional Democrats to "do something" about the millions of Americans who lost their health insurance due to Obamacare, President Obama announced on November 14, that health insurance companies would be allowed to continue selling previously-legal health plans to those people who bought them, as long as they notified those customers of their other health insurance options.
When pressed to explain the legal authority for Obama's policy change, Obama administration officials told The Washington Post's Greg Sargent:
The Supreme Court held more than 25 years ago that agencies charged with administering statues have inherent authority to exercise discretion to ensure that their statutes are enforced in a manner that achieves statutory goals and are consistent with other administrative policies. Agencies may exercise this discretion in appropriate circumstances, including when implementing new or different regulatory regimes, and to ensure that transitional periods do not result in undue hardship.
The case referenced by the Obama administration, according to Sargent, is Heckler v Chaney, a suit brought by death row inmates trying to force the FDA to ban lethal injections.
Now, 11 Republican attorneys general have written a letter attacking Obama's legal justification. From the letter:
CMS's blanket suspension of enforcement exceeds the enforcement discretion contemplated in Heckler. The Court's reasoning in Heckler plainly contemplates case-by-case discretion—balancing "this violation" against "another." Id. at 831 (emphasis added). Its concern was that "[a]n agency generally cannot act against each technical violation of the statute it is charged with enforcing," id (emphasis added), not that an agency might choose to entirely suspend enforcement of a statute for a significant period of time. Indeed, Heckler itself concerned the FDA's response to one particular enforcement request.
As the Supreme Court stated long ago, "[t]o contend that the obligation imposed on the president to see the laws faithfully executed implies a power to forbid their execution is a novel construction of the Constitution, and is entirely inadmissible." Kendall v. U.S. ex rel. Stokes, 37 U.S. 524, 525 (1838). The President's discretion "does not extend to prospective licensing of prohibited conduct, nor to policy-based non-enforcement of federal laws for entire categories of offenders." Zachary Price, Enforcement Discretion and Executive Duty, 67 Vanderbilt Law Review 4 (forthcoming April 14). The President cannot simply set aside statutes or rewrite them as he pleases. Doing so "collide[sJ with another deeply rooted constitutional tradition: the principle that American Presidents.
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The letter was written by West Virginia Attorney General Patrick Morrisey and signed by AGs in Alabama, Georgia, Idaho, Kansas, Louisiana, Michigan, Nebraska, Oklahoma, Texas and Virginia.
Unfortunately there is nothing these AGs can do about Obama's illegal Obamacare rewrites but write letters. It is difficult to see how they, or anybody, could satisfy the standing requirements necessary to challenge Obama in federal court.
Instead, the letter urges Obama to "fix this problem ridden law ... through congressional action."
Considering Obama's already well established record of ignoring Congress and rewriting federal law as he sees fit, that is highly unlikely.
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