Writing in the Federalist Society’s journal Engage, law professor Josh Blackman assesses the legality of possible executive actions that the Obama administration might take if the Supreme Court rules in the pending case of King v. Burwell that federal subsidies are not available for Obamacare insurance purchased on federal exchanges. From his conclusion:
HHS cannot adopt an “administrative fix” to deem states that declined to establish an exchange as having established exchanges. Similarly, the Secretary does not have the authority to accept petitions to establish exchanges unless the state takes specific actions in pursuance of that objective. HHS cannot wave its wand and determining that any state performing minimal functionalities had established an exchange. This legerdemain would violate the letter, and spirit of the law. Any effort by the federal government to disregard the text and history of the ACA—which deliberately sought to put the states in control of whether to establish an exchange—will be met with future litigation.
If the ACA is to succeed, it will be based on a partnership between the states and federal governments, complying with the law Congress drafted. Executive action to bypass the separation of powers will negate the reasoned decisions of the states, and distort political accountability in violation of the principles of federalism.