Are These Obamacare Changes Unconstitutional?

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Eleven state attorneys general are crying foul, calling U.S. President Barack Obama's unilateral Obamacare changes unconstitutional  since he is bypassing congressional approval.  

Last Thursday, West Virginia Attorney General Patrick Morrisey and 10 co-signatories sent a letter to Health and Human Services Secretary Kathleen Sebelius to object to the Obama administration's recent changes to his healthcare brainchild.

The attorneys general argue that the courts have been clear that the legislative branch makes laws, while the executive branch has the power to enforce those laws - and they claim changes to Obamacare exceed precedents adjudicated by the U.S. Supreme Court.

Obamacare Changes: The Case for Illegal Action

The 11 attorneys general argue the courts have been clear that a president does not have the authority to completely eliminate the enforcement of an entire section of a statute. And that's exactly what the Obama administration did when it delayed the employer insurance mandate for one year.

They cite cases such as Heckler v. Chaney (1985), in which the high court decided that some executive branch's enforcement actions of laws are first subject to judicial review.

Typically, statutory language would spell out what the executive branch has the power to do. But because the language of Obamacare is particularly murky, legislative intent should serve as the fallback guide.

The legislative intent of Obamacare was for the entire population - individuals and employers - to pay money into a healthcare pool to keep costs down. But now the president delayed the employer mandate for a year, taking money out of the pool and, arguably, illegally changing the intent of the legislation.

To make this move legally, the Obama administration should have gone through the right channels and put the adjustment to congressional vote, according to the attorneys general. Otherwise, suspending a section of a statute for a year might be unconstitutional action from the executive branch.

According to Texas Attorney General Gregg Abbott, a co-signatory on the letter, making these changes legally is just a phone call away.

"If the President called Sen. Harry Reid (D-NV) and said, 'Harry, I want you to agree with the U.S. House of Representatives, and pass the law they passed,' this would be solved. But the President won't do that," said Abbott.  

The employer mandate is not the only significant modification the Obama administration made post-facto, without congressional approval...

The 11 attorneys general cite the president's move to allow insurance companies to continue offering health plans that'd been canceled for failing to comply with Obamacare standards.

"We support allowing citizens to keep their health insurance coverage, but the only way to fix this problem-ridden law is to enact changes lawfully: through Congressional action," the attorneys general wrote. "The illegal actions by this administration must stop."

They view the president's action as a way to save political face for having clearly broken his promise that people will be able to keep their old health insurance "no matter what," and call the way he went about the adjustment "flatly illegal under federal constitutional and statutory law."

Besides Morrisey and Abbott, co-signatories on the letter included the following attorneys general: Bill Schuette (Michigan), Luther Strange (Alabama), Jon Bruning (Nebraska), Samuel Olens (Georgia), E. Scott Pruitt (Oklahoma), Lawrence Wasden (Idaho), Derek Schmidt (Kansas), Kenneth Cuccinelli (Virginia), and James D. "Buddy" Caldwell (Louisiana). 

All 11 are members of the GOP. In a FOX News interview, Abbott stated that he knows some fellow democrat attorneys general agree with the premise put forth in the letter, but that they won't go on record for political reasons.

What's Next?

Ultimately, the letter can be seen as an administrative remedy, but does little to actually land this unconstitutionality issue in a courtroom.

That's because there are questions as to who has actual legal standing to challenge the Obama administration on their one-sided actions regarding the healthcare law. Whether the states have such standing, or employers, or even individuals, would have to be adjudicated in and of itself.

What do you think? Are these Obamacare changes unconstitutional? Tell us in the comments below...

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