Obamacare has nor offered anything new to the people for the majority of its existence and, furthermore, one high-ranking Democrat acknowledged that Obamacare even violated the law.
Last week, one of Washington’s leading Democrats made what should be considered a stunning admission, yet few in the media bothered to notice, or care.
Senate Minority Leader Chuck Schumer’s call to Mitch McConnell to cooperate in order to amend Obamacare has one paragraph that reveals more than Schumer intended:
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.
Even though this passage doesn’t seem to be anything out of the ordinary, Chuck Schumer’s confession that the cost-sharing payments are not at the moment permanent, and should be made so with a new law, bears no resemblance to the rhetoric former Democratic leaders have used, and it should, if the Affordable Care Act is to keep its legal credibility.
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.
This basically suggests that by “conceding that Obamacare lacks a permanent appropriation for cost-sharing reductions,” Chuck Schumer has implied the payments the administration made were not approved by Congress. And according to Article I, Section 9, Clause 7 of the U.S. Constitution “No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”
By conceding that Obamacare lacks a permanent appropriation for cost-sharing reductions, Schumer’s admission raises some interesting questions. The Obama administration requested an explicit appropriation for the cost-sharing reduction payments, a request Congress promptly denied. If there isn’t a permanent appropriation for cost-sharing payments in Obamacare—as Schumer admitted—then the Obama administration spent money without an appropriation.
The executive spending money without an appropriation not only violates Article I, Section 9, Clause 7 of the Constitution—“No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law”—but also the federal Anti-Deficiency Act, which prohibits federal employees from authorizing expenses in excess of available appropriations—which, according to Schumer’s logic, do not exist for the Obamacare cost-sharing reductions.
The Anti-Deficiency Act includes not just civil, but criminal, penalties: “An officer or employee of the United States Government or of the District of Columbia government knowingly and willfully violating [the Act] shall be fined not more than $5,000, imprisoned for not more than 2 years, or both.”
By calling on Congress to “ensure” permanent cost-sharing reductions, Schumer has essentially admitted that President Obama violated the Constitution, and members of his administration may have violated federal criminal statutes by spending money without an appropriation. This prompts one other obvious question: When will Schumer endorse a special counsel to investigate these matters?
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