5. Obamacare’s hidden tax on states. The Affordable Care Act imposed a health-insurance providers’ fee on insurance companies, for the purpose of taxing the windfall they were expected to receive from increased enrollment. In March 2015, states were notified that they too would be assessed this fee, because they use managed-care organizations to provide Medicaid services. Nothing in the ACA allows the federal government to force states to pay the fee, so the administration left it to the “private” Actuarial Standards Board to determine what makes a state’s payments to managed-care organizations “actuarially sound,” as required by law. The board then interpreted that “actuarially sound” standard to require states to pay the taxes assessed on their managed-care organizations. For Texas, that means an unanticipated annual budget hit of $120 million. This assessment raises serious coercion issues, as the states have no choice but to pay the tax or lose their federal Medicaid funds. Texas, joined by Kansas and Louisiana, sued the government in October.
6. Deferred Action for Parents of Americans. Speaking of Texas suing the government: After President Obama decided in November 2014 that he had been wrong 22 times in saying he couldn’t give temporary legal status to illegal immigrants, a majority of the states took him to court. The administration engineered DAPA in the wake of Congress’s rejection of the very policies the program sets forth, in violation of the Administrative Procedure Act, immigration law, and the Constitution’s take-care clause. A district court temporarily enjoined DAPA in February 2015, which action the Fifth Circuit twice affirmed. Stay tuned for the Supreme Court’s resolution this coming June.
7. EPA’s Clean Power Plan. In June 2014, the Environmental Protection Agency proposed a new rule for regulating power-plant emissions. Despite significant criticism, on August 3, 2015, it announced a final rule. It gives states until 2018 — it “encourages” September 2016 — to develop final plans to reduce carbon dioxide emissions, with mandatory compliance beginning in 2022. EPA cites Section 111 of the Clean Air Act as justification for the Clean Power Plan, but that section can’t give the agency such authority. Section 111(d) doesn’t permit the government to require states to regulate pollutants from existing sources when those pollutants are already being regulated under Section 112, as those deriving from coal-fired plants are.