Congress specified that credits and subsidies are only to be available in states that set up their own health-insurance exchange for a reason: It could not force states to set up exchanges. Instead, it had to entice them to do so. Oklahoma’s lawsuit is about preserving the state’s authority to make a policy decision granted to states under the Affordable Care Act. Our governor and policy makers in Oklahoma decided it wasn’t in the state’s best interest to create a health-care exchange. The IRS, at the administration’s bidding, is attempting to take away the benefits of that choice by regulatory action. Such attempts to expand the power of the executive branch should be troubling to all Americans.
While much time has been devoted in Washington to the issue of “defunding” the Affordable Care Act, the success of these lawsuits would have much the same effect. Should the courts decide the IRS is exceeding its authority and isn’t allowed to assess the employer penalties in states that have not established their own exchanges, the structure of the ACA will crumble—as one of the primary mechanisms the federal government has employed to force people into the health-insurance market evaporates.
As much as we wish the government were run like a business, the administration cannot “improve” upon legislation passed by Congress by rolling out updates in the manner that Silicon Valley does. That’s not permitted under the Constitution: Congress passes laws, the president executes them. Period. That’s why Oklahoma and other states are fighting to stop the administration’s attempt to “fix” the health-care law through executive fiat.