As I wrote last year, the text of the law is crystal clear that the subsidies and penalties only apply in states that adopt exchange laws. However, as I predicted, the IRS has asserted — contrary to law — that the subsidies and penalties apply in states that refuse to set up exchanges. The U.S. Senate, however, will likely vote soon on overturning that lawless IRS rule (talk about taxation without representation!), under a procedure called the Congressional Review Act that gives the minority the power to force a vote on overturning new regulations that cannot be filibustered. This will be a very telling vote for senators from states like Florida that have made clear they will not set up exchanges.
Even if the Senate cannot muster the votes to overturn the IRS’s lawless rule, it stands a very good chance of being struck down in court. Governors and state legislators who oppose the president’s health care law must oppose any creation of a state exchange to keep alive this option of defeating the law.
Below is the letter from congressional conservatives. Republican governors who are still on the fence should listen to them. See the following link for the names of the 70 other signatures by conservative senators and representatives: CongressLettertoNGA_062912
Phil Kerpen. He is the president of American Commitment ; a columnist on Fox News Opinion, and the author of Democracy Denied: How Obama is Bypassing Congress to Radically Transform America – and How to Stop Him. Phil Kerpen is a contributing author for the ARRA News Service.
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