A legal expert said the 11 state attorneys general who accused the Obama administration of breaking the law by making changes to the Affordable Care Act, also known as "Obamacare," without getting them approved by Congress, could win in court.
"The illegal actions by this administration must stop," wrote West Virginia Attorney General Patrick Morrisey, in a letter to Health and Human Services Secretary Kathleen Sebelius. Ten other attorneys general – all Republicans, like Morrisey, and including Texas Attorney General and Gubernatorial Candidate Greg Abbott – signed the letter. Hans A. von Spakovsky, senior legal fellow at the Heritage Foundation, told The Christian Post that this is not just a political stunt, but could actually result in a successful suit against the administration.
"If a court determines the agencies have acted in an arbitrary, capricious manner, the judges can overturn whatever rules they have issued," von Spakovsky told CP in an interview on Friday. The state officials present a strong claim, with two separate arguments, the legal expert explained.
The first argument, von Spakovsky argued, is sound but difficult to make in court. Therefore, "they don't just say that the president is acting beyond his constitutional authority by making changes in the law," the expert explained. "They also back it up with the claim that the rules HHS is making are also improper."
Von Spakovsky referred to the Administrative Practice Act, a 1946 law that governs rulemaking by federal agencies. The 1984 Chevron case clarified it – "the courts said agencies can't act in an arbitrary or capricious manner."
If the attorneys general filed an action in federal court, they could press the administration over this issue. "That's one of the reasons the president has been so intent on packing the D.C. circuit, because they've been very unhappy with some of the rulings they've gotten in DC," von Spakovsky stated.
The attorneys general argue that the federal government violates the privacy of citizens by failing to keep their private health insurance information safe and secure. This week, in West Virginia alone, 18,000 people who qualified for Medicaid on Healthcare.gov never had their files sent to the state office to receive coverage.
Edmund Haislmaier, senior research fellow for Health Policy Studies at The Heritage Foundation, explained that this glitch can be easily solved, since those who failed to sign up online could go to state Medicaid offices. Nevertheless, it again confirms that Obamacare "is not working as advertised," especially when it comes to managing private information.
Von Spakovsky highlighted the dangers to the Obama administration if private insurance information was leaked. "If there's a big scandal involving identity theft, everyone will be able to trace that directly back to the president after he got this warning from the AGs," the legal expert remarked.
Despite this threat, von Spakovsky does not expect Obama to withdraw the executive orders. "He seems to feel that he's an imperial president who can do whatever the hell he wants," the scholar charged.
The White House also responded to reports that more people had lost health insurance due to Obamacare than had gained new coverage by Jan. 1 of this year, The Daily Caller reported. The Daily Caller compiled this information from Associated Press reports on loss of coverage and HHS reports on Obamacare sign-ups. Jesse Lee, director of progressive media and online response at the White House, called the report "embarrassingly deceptive" in a tweet on Thursday.
Haislmaier warned that all information about insurance coverage is currently incomplete and "can't be verified." The health care expert explained that accurate numbers will be available after insurance companies file them in March. Despite the inconclusiveness of The Daily Caller's numbers, Haislmaier admitted that the White House "provided no evidence for the other position either."