Subject: Re: Boom. The EO I wanted (healthcare pricing)
Why are you arguing Obamacare's statute? Is that the only one governing healthcare?

It's the statute that was cited as the grounding authority for the rule you linked upthread. It's what they reached for when trying to find Congressional authority for doing what they were doing.

It's not the only statute "governing healthcare," but an agency needs something other than a statute "governing healthcare" generally in order to create a system of mandatory pricing disclosure. They need a statute that authorizes them to require that private actors disclose price information. Not a lot of them out there that haven't already been implemented, like the hospital requirement.

By statute - not Obamacare - CMS has the ability to enforce health care reforms with insurers.

There's no statute that gives CMS the ability "to enforce health care reforms" generally. There are lots of statutes that authorize CMS to do specific things. But they don't give them the ability to require disclosure of procedure prices. There are statutes that require them to disclose the insurer's reimbursement schedules....but that's not what you're after. You want the health care providers to disclose the prices for their services.

So this is merely an extension of something they're already doing.

They don't get to extend something they're already doing if they don't have statutory authorization for the extended activity. If Congress gives CMS the right to require insurers to provide information on their reimbursement rates, that doesn't mean CMS now has the power to require providers to disclose the prices they charge patients for procedures.

It used to be that the courts gave an enormous amount of leeway to agencies to justify almost any regulation with even the most tangential connection to an express grant of Congressional power. Those days are now gone. So merely because statutes - not Obamacare - give EPA the ability to enforce pollution controls with emitters (to borrow your formulation above), that does not give them the ability to regulate the fuels that power plants utilize. The grant of authority is limited to what's actually been granted. That's not Loper Bright (which overruled Chevron), but WV v. EPA.

I mean....this is exactly the whole point of the conservative legal project. To curtail agencies from exceeding the specific and limited things that Congress has authorized them to do. Unless Congress tells the agencies they're allowed to require private medical providers to post a price list, the agencies can't do it. Regardless of whether it's good public policy or not, that's Congress' call - not the agencies. Or the President's, because the President doesn't get to legislate - he only gets to execute through the agencies the laws that Congress has enacted.