Despite what the Supreme Court has said, Obamacare is illegal on virtually every level. It exceeds Congress’s enumerated powers, it makes a mockery of the Commerce Clause, it violates Americans’ religious liberty and conscience rights, and Obama administration health regulations implemented it contrary to the law’s own text whenever it was convenient.
This is nothing new. We’ve known it for the better part of the last decade. But what is new is that a top Democrat just admitted one of the ways Obamacare broke the law.
At the Federalist, Christopher Jacobs notices that Senate Minority Leader Chuck Schumer’s recent statement to Mitch McConnell posturing about “working together” to “fix” Obamacare (ugh) contains one passage that has more implications than Schumer probably had in mind:
Democrats are eager to work with Republicans to stabilize the markets and improve [Obamacare]. At the top of the list should be ensuring cost-sharing payments are permanent, which will protect health care for millions.
At first glance, that looks innocuous enough (well, as innocuous as anything a Democrat says can be, at least). However, Schumer’s admission that the cost-sharing payments are not currently permanent, and need to be made so by new legislation, is a departure from the rhetoric of previous Democrat leaders — and it matters a great deal to the legal legitimacy of (this part of) Obamacare.
Section 1302 of Obamacare requires health insurers to reduce cost-sharing (i.e., deductibles, co-payments, etc.) for certain low-income enrollees who buy silver plans on health insurance exchanges. The law directs the secretary of Health and Human Services (HHS) to create a program to reimburse insurers for the cost of providing those cost-sharing discounts. But the text of the law does not actually disburse funds to HHS—or any other cabinet department—to make the reimbursement payments to insurers.
Not wanting to be bound by such niceties as the rule of law, the Obama administration started making the payments to insurers anyway, claiming the “text and structure” of Obamacare allowed them to do so. The House of Representatives sued, claiming a violation of its constitutional “power of the purse,” and last May, Judge Rosemary Collyer agreed, ruling that the administration violated the Constitution […]
Schumer’s statement last Thursday stands out because the Obama administration and House Minority Leader Nancy Pelosi (D-CA) have claimed, both in court and elsewhere, that Obamacare made a permanent appropriation for the cost-sharing payments. The law did no such thing, and a federal district court judge so ruled, but they attempted to argue that it did.
That means that, by “conceding that Obamacare lacks a permanent appropriation for cost-sharing reductions,” Schumer has tacitly conceded that the the payments the administration did make were done without Congressional authorization. And the Constitution — Article I, Section 9, Clause 7, to be specific, explicitly declares that “No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”
There are no “unless the president really, really want to” exceptions.
Interestingly, though, these Obamacare payments also violate a criminal statute, the federal Anti-Deficiency Act, which forbids federal employees from authorizing expenses for which Congressional authorization does not exist. Further, any federal government official or employee who does so, under the ADA, is potentially subject to two years in prison and/or a $5,000 fine.
Again, none of this is new information. Every Democrat on Capitol Hill knows full well this was both unconstitutional and criminal, and has known for a long time. What is new, however, is that Schumer was careless enough to go off script.
As Republicans are flirting with various ridiculous plans to leave parts of Obamacare standing (or worse, leave it all standing and just “fix” it), this should be a wakeup call. Compromising with Obamacare is not just bad policy, and not just a political betrayal…it’s complicity in an affront to the Constitution and the rule of law.