Rule Of Law: An Abuse Of Discretion — How Republican AGs Are Fighting Obamacare

Jessica Medeiros-Garrison President, Rule of Law Defense Fund
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Chalk up another win for the rule of law and a loss for an administration bent on making policy outside the framework set by our Constitution. President Obama’s namesake law, the Affordable Care Act (ACA), is anything but affordable and caring. It’s pocked with outrageous spending, extreme swelling of the federal government, and chronic denial of any notion for cooperative federalism.

Republican attorneys general have been administering the right medicine against this law since it was enacted. Just this week, a federal judge in Oklahoma agreed with Attorney General Scott Pruitt and declared unlawful certain regulations written by the IRS to implement the bloated statute.

As Fred Barnes noted, the Republican attorneys general are the last line of defense against the Obama administration and federal overreach. They jumped to the front of the line in responding to the damaging provisions of the ACA, filing suit against the law only hours after its passage. Florida’s early suit, led by Attorney General Pam Bondi, ultimately went to the Supreme Court where the ACA’s massive Medicaid expansion was found unconstitutional in June 2012.

This week, thanks to the leadership of Republican Attorney General Scott Pruitt of Oklahoma, the unlawful activities of this administration were again invalidated. In 2012, General Pruitt challenged the legality of an IRS rule that caused billions in illegal subsidies to be paid out, despite Congress having never authorized those payments. He was the first AG to challenge provisions implementing the law. The IRS rule awarded subsidies and tax credits for health insurance and levied penalties against individuals and large employers in the 34 states that declined to create a state-based health care exchange. In other words the president, through his proxy at the IRS, circumvented the will of state legislatures and Congress and rammed his square ideological peg through the round hole of our separation of powers.

The Obama administration fought the Oklahoma lawsuit tooth and nail, particularly in light of its loss in the similar case, Halbig v. Burwell. After denying the federal government’s motion to dismiss the suit last year, U.S. District Judge Ronald White on Tuesday agreed with General Pruitt’s arguments, finding that the IRS enacted the provisions outside of congressional authority. Judge White vacated the IRS rule calling it “arbitrary, capricious, and an abuse of discretion or otherwise not in accordance with the law.”

“Today’s ruling is a consequential victory for the rule of law. The administration and its bureaucrats in the IRS handed out billions in illegal tax credits and subsidies and vastly expanded the reach of the health care law because they didn’t like the way Congress wrote the Affordable Care Act. That’s not how our system of government works,” Attorney General Pruitt said. “The Obama administration created this problem and rather than having an agency like the IRS rewrite a law it didn’t like, the administration should have done the right thing and worked with Congress to amend the law.”

Much of the dismantling of Obamacare will be the direct result of actions taken by Republican attorneys general. In the Halbig case decided in July, briefs were filed or joined by Republican attorneys general Pruitt (Oklahoma), Strange (Alabama), Olens (Georgia), Morrisey (West Virginia), Bruning (Nebraska), Wilson (South Carolina), Schmidt (Kansas), and Schuette (Michigan) to stop the IRS from unilaterally interpreting the ACA in a way that nullifies states’ decisions not to set up healthcare insurance exchanges. Indiana’s Attorney General Greg Zoeller also has pending a closely-watched lawsuit based on grounds similar to Halbig and the Oklahoma case. These challenges could ultimately derail the ACA, although it is likely that these issues will be decided by the Supreme Court.

The clear winners in these cases are not the Republican AGs, or even the states they represent, but the American people. The Obama administration continues to overextend its Constitutional authority knowing that a divided Congress is hamstrung to keep them in check. Consequently, the role of the Republican attorneys general has never been more crucial as they are best suited for pushing back the tide of federal overreach. At every turn when the federal government intrudes and oversteps, Republican attorneys general are there to defend federalism and the rule of law.

The field of state attorneys general across the country is evenly divided 25-25, but the opportunity is fast approaching to bolster the firewall against Mr. Obama’s proclivities. The elections in November offer a chance for Republicans to hold as many as 30 AG seats nationwide. With the president’s inability to move his agenda through Congress, and with the upcoming lame-duck session, the probability of “governance” via regulatory fiat is high. The most effective backstop against this bizarre and dangerous era of a runaway executive is a cadre of Republican attorneys general at the ready to uphold the rule of law.