Gov. Mary Fallin's office already was avalanched with calls and correspondence urging her to push back against the new federal health care law when she received an important one from the state's top prosecutor.
Attorney General Scott Pruitt offered no opinion about the Affordable Care Act in his letter; instead, he told the governor that his lawsuit against the federal government could be harmed if she complied with it.
“The lawsuit is predicated … on the fact that the State is not implementing a state-established exchange,” Pruitt wrote, referring to a component of the act that calls for insurance policies to be sold to consumers via an online market. “If the State does implement an exchange, I will have to dismiss the lawsuit.”
Within a few hours Fallin's chief of staff, Denise Northrup, sent an email to then-Secretary of State Glen Coffee, calling Pruitt's letter “self serving and political.” In his response, Coffee said he agreed.
Pruitt's office declined to release the letter to The Oklahoman because the lawsuit is still pending, but it was included as an attachment in health care emails released by Fallin's office in March.
About the lawsuit
In the letter, dated Nov. 16, 2012 — three days before Fallin announced she would decline a state-based exchange — Pruitt offered the governor one last heavy dish of food for thought.
“Please inform me as soon as your decision is made, so that I can take appropriate action with regard to the lawsuit,” he wrote.
Pruitt wrote that his lawsuit — filed two months prior in federal court — maintains the U.S. Internal Revenue Service would have no authority to collect tax penalties applied to individuals and businesses that fail to purchase or provide health insurance coverage in states that participate in a federal insurance exchange.
“In short, if successful, the State's lawsuit will exempt employers in Oklahoma from the employer mandate, and will prevent thousands of Oklahomans from being subject to the individual mandate,” Pruitt wrote.
Northrup's response was typical of her reactions to suggestions and advice from other important elected officials, including U.S. Sen. Tom Coburn, as Fallin moved closer to making one of the most important decisions of her governorship.
‘The right decision'
Northrup declined to comment on the Pruitt letter and her reaction, but Coffee said the comments weren't meant as complaints.
“He obviously has a specific interest in succeeding in that lawsuit and wants to protect it,” Coffee said of Pruitt. “(If he) is successful in his lawsuit it could overturn Obamacare, which is a policy goal of many Oklahomans, many members of the Legislature and the governor.”
The governor's spokesman, Alex Weintz, said Northrup's frustration reflects the office's strategy of keeping Fallin from being “boxed in by outside forces.”
“Our job as a staff, when we have a big policy decision like this, is to present all the relevant facts to the governor and protect the ability of the governor to make the right decision for the state,” Weintz said. “There were hundreds if not thousands of voices all with their own opinions and agendas trying to get the governor to do something and sometimes as staff, you know, we got prickly about that.”
Coffee said Pruitt's letter was a factor in Fallin's decision, but both he and Weintz said it was not a deciding factor.
Pruitt, for his part, said it was not his intention to influence policy.
“The debate is about something that's a little bit larger than just, you know, policy,” he said. “My only commitment was this: That if they made their decision, that the decision they made carried out the full benefit of what the law provided.”
Pruitt's lawsuit is still pending in the eastern district of Oklahoma as a judge determines whether or not he will hear oral arguments.
In his letter to Fallin, Pruitt said he was “agnostic” about her policy decision. In an interview with The Oklahoman, he reiterated that his concerns are with the rule of law and not politics or policy.
“There has been a commitment, a strong commitment, from Day One among all my colleagues in this office to be about one thing and one thing only — the law, and making sure that we conduct ourselves in a way to focus on that,” Pruitt said. “It's all about making sure that agencies, in this instance the IRS, does what Congress told them to do, and they haven't.”
The lawsuit against the IRS is one of six pending federal lawsuits filed by Pruitt, a former state legislator who was elected Republican attorney general the same day in 2010 that Fallin was elected governor.
Four lawsuits are currently pending against the U.S. Environmental Protection Agency, and the state is also party to a challenge filed in Nebraska against an Affordable Care Act component that requires employers to cover employees' contraceptive purchases.
The state has also accused the U.S. Office of Surface Mining of federal overreach in a separate case.
Pruitt, who developed a special unit of prosecutors focused on these types of cases, said protecting Oklahomans from “federal overreach” is one of his primary tasks as attorney general.
“The scope and authority and power of the U.S. government over your life as an individual has been up for debate the last two-plus years, and it continues to be,” he said. “These are not abstract issues; they're legal issues that go to the heart of your ability to live as an Oklahoman.”
Some conservative health care analysts have called Pruitt's lawsuit against the IRS a model for other states and said the ability of the federal government to implement key elements of the Affordable Care Act hangs on its outcome.
But other analysts have said the lawsuit is just one more obstacle elected officials in Republican-led states have tossed out to disrupt the agenda of President Barack Obama, a Democrat.
Timothy Jost, a law professor at Washington and Lee University who has studied the issue, said 382,000 Oklahomans would lose an estimated $1.5 billion in subsidies in 2014 alone if they could not be offered through the federal exchanges.
Oklahoma is one of 26 states that have opted not to develop a state-based health care exchange.