By Bryant Jackson-Green -
Eleven state attorneys general are coming out against the unconstitutionality of changes in implementing President Barack Obama’s Affordable Care Act.
This group – not including Illinois Attorney General Lisa Madigan – lambasted the U.S. Department of Health and Human Services, or HHS, for proposed regulations they say “[compound] illegal executive action” and “[fail] to protect the privacy of consumers” who get insurance coverage through federal exchanges.
The letter comes in response to HHS’s proposed rule changes for 2015. The changes would delay the employer mandate, the requirement that businesses with 50 or more employees provide health care coverage, until 2015. The proposed rules came after Obama’s claims that ”if you like your health care plan, you can keep it” were shown to be false, earning the dubious honor of being named Politifact’s “Lie of the Year.”
The seven-page letter shows how the rules would allow the executive branch to disregard and violate the terms of the law passed by Congress. For example, allowing insurance companies to continue to offer canceled plans directly contradicts the Affordable Care Act’s mandates. The president has a constitutional duty to faithfully execute the laws duly passed by Congress (and signed by him, no less). While the executive branch does have some discretion in how it goes about enforcing the law, it may not elect to “entirely suspend enforcement of a statute for a significant period of time,” as Obama and HHS are doing. The proper approach to reforming the law, the letter points out, is to make amendments through the legislative process.
The letter also points out the HHS proposal’s troubling lack of privacy protections. Health care navigators tasked with assisting customers in signing up for health care plans have access to sensitive personal information such as social security numbers, birth dates and tax documents. But the HHS does not require criminal background checks for navigators, even after media outlets have raised concerns about the risk of identity theft.
Agencies such as HHS exist to write regulations that are necessary to implement the laws enacted by Congress – not to fix Congress’ mistakes or help a president mitigate his political embarrassment. Obama should be embarrassed, not just by his disastrous health care law, but also by his administration’s need to be schooled about its constitutional role by state attorneys general.
Bryant Jackson-Green is Legal Research & Litigation Assistant at the Illinois Policy Institute