WILL Blog | Civics 101 and ObamaCare

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The Journal Sentinel reported last week that President Trump has the power to “let Obamacare implode” by deciding, apparently entirely on his own, not to make some subsidy payments that are otherwise due to insurers who participate in the program.  Guy Boulton, “If Trump decides to ‘let Obamacare implode, rates could soar for millions” Journal Sentinel, August 4, 2017.  http://www.jsonline.com/story/money/business/health-care/2017/08/04/move-threatened-trump-could-create-turmoil-obamacare-market/524382001/

The article assumes, and pretty clearly suggests, that the President of the United States has the power to take whatever funds he pleases out of the government’s piggy bank and spend them on whatever he or she might want.  Or that he or she can refuse to comply with a law that requires the federal government to pay someone for something by putting the money back in the piggy bank and refusing to write a check.  Neither of these things is true.

This particular controversy has to do with certain “cost-sharing” subsidies that were written into the Affordable Care Act when it was passed.  The subsidies are, as the article suggests, intended to compensate insurers who participate in the Obamacare Exchanges for the certain costs associated with providing coverage for lower income participants in the program.  So far, so good.

What the article doesn’t tell us is that while the Affordable Care Act provided that the government could pay such subsidies, the Congress never actually appropriated any funds to make the payments.  Civics 101 tells us that the President can’t take money out of the federal piggy bank unless he is authorized to do it.  It’s in the Constitution.  “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” The Congress, not the President, makes the laws.

Now one might argue that since the cost-sharing subsidies were authorized by the Affordable Care Act the Congress should have appropriated the money to pay them.  But it did not.  This was a problem for the Obama Administration, which did want them to be paid.  So it paid them anyway. And it got sued.  By the United States House of Representatives.  Who claimed that the payments were unconstitutional as no money to make the payments had ever actually been appropriated by the Congress.  A United States District Court has agreed that the subsidy payments were unlawful, and the case is now on appeal.

So here is the state of play.  President Trump could continue the cost-sharing subsidies, but at least according to the judge who heard the case he doesn’t have the legal authority to do that.  Or he could do what President Obama did, and just spend the money anyway.

Perhaps a better approach would be for our government to actually make an effort to follow the rules of Civics 101.  The Congress could actually pass an appropriations bill telling the President to make the payments in 2018.  Or not.  And if a bill passed, the President could veto it.  Or not.  His veto could be overruled.  Or not.  Then the voters would know who did what, and actually hold them responsible.  That’s the way Civics 101 is supposed to work.

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