Obamacare’s Federal Exchanges Do Not Provide Security Or Verification

Breaking news: the Federal Health Care Exchanges that are supposed to be operational on October 1, 2013 have failed their security protection tests.  Friday August 2, a Health and Human Services inspector general report disclosed that the HHS is months behind schedule in making sure that there is security for the new data hub for the Obamacare Exchanges.  This report indicates HHS Secretary Kathleen Sebelius’ testimony before the House Ways and Means Committee last April to the effect that the ACA’s data hub was “basically complete” was at variance with the truth.  Furthermore, HHS has not obtained most of the required service-level agreements from seven other government agencies that will be receiving the public’s information.  “ObamaCare’s Risk To Your Privacy,” Investor’s Business Daily, 8/8/13, p. A12.  According to Larry Kudlow, this new report “admits there is no security firewall protecting your data from hackers, identity thieves and many other federal agencies.”  Larry continued, “The whole security system has not been tested.”  Larry’s guest Dr. Scott Gottlieb of the American Enterprise Institute said the hub will be working on the honor system and the portal where the public enters their personal information to enroll in insurance plans will be at even greater risk.  That means that people who try to buy health insurance on the Exchange will expose their social security numbers, finances, age, health records and various other information to anyone who wants to steal it.  It will be an open invitation to identity theft.   The Kudlow Report, CNBC, 8/7/13.  IBD stated, “If the hub isn’t sufficiently secure when the exchanges open up, it will create a huge opening for identity thieves and other such criminals.”  Representative Patrick Meehan (Pa.-R) described the exchange situation as, “A honey pot for hackers.”  “ObamaCare’s Risk To Your Privacy,” Id.

Twenty-six states, all with Republican Governors, have refused to set up state Obamacare exchanges, forcing the Federal Government to set up exchanges for those states.  Approximately seven other states have opted for federal-state partnership exchanges.  In New Jersey, Republican Governor Christie vetoed legislation by the Democrat controlled legislature establishing a state-run health care insurance exchange.  Christie stated that he was committed to comply with Obamacare “only in a manner that is the most effective and efficient for the residents of New Jersey, and the businesses that will carry the costs of this new program.”  Christie also said that the Federal Government is best equipped to operate the exchange.  “GOP governors reject ObamaCare health exchange partnerships,” Fox News.com, 2/17/13.  In rejecting both a state-run Obamacare Exchange and a federal-state partnership, Republican Governor Bill Haslam of Tennessee sent a letter to Kathleen Sebelius, Secretary of HHS, stating the partnership exchange model doesn’t answer his concerns over “aggressive federal timelines, a lack of true flexibility for states, and misguided federal policies.”  Id.  Florida passed the deadline for running its own exchange and Republican Governor Rick Scott also rejected partnering with the federal government stating, “We continue to be concerned about the many unknowns impacting the cost of operating an exchange, and simply do not have enough information to make a decision about running one at this time.”  Id.

However, there are a couple of problems with the Federal Government running Obamacare Exchanges.  For one, the federal government was caught flatfooted, because the Obama Administration had assumed that the states would all set up their own exchanges.  Second, Obamacare did not provide for funding of health care subsidies under Federal Exchanges.  Furthermore, under Obamacare the employer penalty is not imposed on the employer until one of its employees applies for the Obamacare subsidy.  Oklahoma’s Attorney General Scott Pruitt was quick to pick up on this quirk in the Obamacare legislation and brought a lawsuit to stop the IRS from issuing the subsidies/tax credits and collecting the penalties/taxes that Congress had not legislated into law.  Oklahoma’s lawsuit challenging the IRS’s authority to spend tax dollars and levy penalties without authorization from Congress is raising a legitimate Constitutional principle.  Simply put, the executive branch cannot Constitutionally collect a tax that Congress has not created through legislation, just because it suits the president’s and his party’s left-wing agenda to do so.  The Federal Government’s creating its own exchanges within states would appear to violate the 10^th Amendment.  However, even if the Federal Government can set up its own exchanges within the states, it has no authority under the ACA to use them to offer subsidies and inflict the accompanying punitive taxes.  “On Obamacare, Oklahoma Leads,” National Review Online, 6/4/13.

All told some 33 states have refused to create their own separate exchanges, including Oklahoma.  Therefore, the residents of those states are not eligible for exchange subsidies, and its employers are not subject to the associated punitive tax.  The law was intentionally written to deny subsidies to states that refuse to create exchanges, in order to pressure the states into setting up their own exchanges.  The Democrats simply failed to anticipate that the majority of states would refuse to create exchanges, despite the taxpayer funded subsidies.  However, the Obama administration, which has demonstrated a habit of disregarding the rule of law, is proceeding as though it has the legal right to offer subsidies and impose penalties in states that have refused to create exchanges.  Id.  In Halbig v. Sebelius, four individual taxpayers and three employers are also challenging the IRS’ authority to issue subsidies and collect punitive taxes under the same theory as the Oklahoma case.  “Halbig v. Sebelius: ‘All of Obamacare Hangs on the Outcome,’” Cato Institute Forum, 6/17/13; Gabrielle Karol, “New Lawsuit Filed Against ObamaCare,” foxbusiness.com, published 5/3/13.

There are at least twenty unconstitutional provisions in Obamacare, and the regulations being issued to enforce Obamacare are raising additional serious concerns and in some cases lawsuits or Congressional action.  For example, the Independent Advisory Board (IPAB), as known as Death Panels, violates Article I, Section 1 of the Constitution, which vests all legislative authority in the Congress.  Thus, IPAB constitutes an unconstitutional delegation of legislative authority to fifteen unelected cronies of the president.   For now, Kathleen Sebelius is acting as a one person self-appointed Death Panel, as we saw in the Sarah Murnaghan case of a ten year old girl being denied a lung transplant by Sebelius.  There is no right of appeal to an administrative denial of health care, which constitutes an unconstitutional violation of administrative “due process.”  Some twelve lawsuits have been filed by colleges, universities, hospitals and other institutions alleging that regulations issued by Sebelius under Obamacare violate the First Amendment’s Freedom of Religion.  Furthermore, Obama’s defining what constitutes a religious entity is an additional violation of the First Amendment.  Obamacare’s allowing the IRS warrantless searches of personal financial records violates the Fourth Amendment’s prohibition against unreasonable searches.     Article I, Section 7 of the Constitution provides that, “All bills raising Revenue shall originate in the House of Representatives.”  Obamacare provides some twenty new taxes or increases in existing taxes and, therefore, was constitutionally required to originate in the House.  However, the Democrats rammed through the Senate bill in clear violation of the Constitution.  The Supreme Court has only reviewed about three of the many constitutional issues raised by Obamacare.  Therefore, the battle to end Obamacare will go on unless or until, to paraphrase the words of Senate Majority Leader Mitch McConnell, (Ky.-R) at CPAC, “Obamacare [is] repealed root and branch.”