New information has added to the belief that President Obama’s signature legislative goal has skirted ethical standards both in the manner in which it was passed, and the ways it has been executed.
The Affordable Care Act, better known as Obamacare, provided a controversial change in the nature of American health care insurance. Far more questionable than the contents of the legislation, however, was the nature in which it was enacted. It has now been revealed that unconstitutional practices have been engaged in to carry out the bill’s provisions, in an attempt to mask major financial failings of the concept.
Despite the major changes the legislation was destined to provide to the administering of health care as well as the U.S. economy, Representatives and Senators (and the American public) were never given the opportunity to review the major legislation they were being asked to approve. Then-House Speaker Nancy Pelosi (D-Calif.) famously said “We have to pass the bill so you can find out what is in it.”
At the time, both houses of Congress, as well as the White House, were under the control of the Democrat Party. There was no viable means to force the bills’ proponents to adhere to legal procedures.
The results of an investigation by the House Ways and Means Committee have revealed that a bedrock Constitutional provisions has been violated.
According to the “Joint Congressional Investigative Report Into The Source Of Funding For The ACA’s Cost Sharing Reduction Program,”
“More than two centuries ago, this country adopted the Constitution as the blueprint and basis for our federal government. While this framework has been amended over the years, the system of checks and balances among the Legislative, Executive, and Judicial branches remains firmly intact. Congress passes laws, and the Executive branch implements them. The Constitution further makes clear [In Article 1, Section9] that the power of the purse lies with Congress—“No money shall be drawn from the Treasury but in Consequence of Appropriations made by Law[.]” This requirement ensures that the Executive branch does not spend taxpayer money without the approval of Congress.
The Administration, however, has done just that. Since January 2014, the Administration has been paying for the cost sharing reduction (CSR) program established by the Patient Protection and Affordable Care Act (ACA) without a lawful congressional appropriation. This action is a clear constitutional violation of the most fundamental tenet of appropriations law.
Found under Section 1402 of the ACA, the CSR program requires health insurance companies that offer qualified health plans to reduce co-payments, deductibles, and other out-of pocket expenses for eligible beneficiaries. Section 1412(c)(3) authorizes the federal government to make direct payments to insurance companies to offset estimated costs incurred by providing these CSRs to eligible beneficiaries. Nothing in the ACA provides an appropriation or a source of funding for the CSR program. Therefore, the Administration needed to request an appropriation from Congress to make CSR payments to insurance companies.
The Administration, however, has been making CSR program payments through a permanent appropriation, found at 31 U.S.C. § 1324. This appropriation can only be used to disburse money for specific, enumerated programs, including tax refunds and several enumerated refundable tax credits. Congress must amend this appropriation to include other programs.
Congress did just that for one part of the ACA—the premium tax credit. Congress did not do so,however, for the CSR program. Nevertheless, the Administration has been funding the CSR program through this permanent appropriation.”
The Committee’s findings include:
- The Administration knew it could not use the permanent appropriation to fund the CSR program.
- The Administration requested an annual appropriation for the CSR program, but shortly thereafter, informally withdrew the request.
- The Administration developed a new—albeit illegal—path forward to pay for the CSR program. High-level IRS officials raised concerns about this plan, but the decision had already been made.
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“When Congress started asking questions about the source of funding, the Administration refused to provide answers.
“The Committee’s conclusion present clear evidence of an intentional violation of a key Constitutional tenet:
“The Patient Protection and Affordable Care Act did not—and still does not—provide funding for the cost sharing reduction program. The Administration knew that. Internal Administration memoranda acknowledged that fact. Actions taken by the Administration in 2012 and 2013 demonstrated that fact. And indeed, the Administration initially requested an annual appropriation to fund the CSR program, knowing that the ACA did not provide a source of funding for the program and thus necessitated further Congressional action.
“Yet, for reasons still unclear, the Administration informally withdrew that request by surreptitiously calling the Senate Committee on Appropriations, leaving no paper trail and hiding its actions from the public, before Congress denied it. The Administration then concocted a post hoc justification to raid the premium tax credit account—which was lawfully funded through the 31 U.S.C. § 1324 permanent appropriation—to pay for the CSR program. It memorialized this legal justification in an OMB memorandum reviewed by very senior Administration officials at multiple departments, including the Attorney General himself. IRS officials expressed concerns about funding the CSR program through this permanent appropriation. How could the Administration fund the CSR program this way without violating appropriations law? But when they expressed those concerns, they were essentially told that the decision had been made. Like it or not, the Administration was going forward with funding the CSR payments through the 31 U.S.C. § 1324 permanent appropriation. And it did so knowing that it would violate appropriations law, the Antideficiency Act, and ultimately, the United States Constitution.”