Constitutional Lawyer: Yes, Obama’s Affordable Care Act Subsidy Provision Was Illegal

Townhall.com

by Matt Vespa

There’s are a lot of liberals frothing at the mouth over the Trump administration’s decision to end the unconstitutional subsidies to insurance companies under the Affordable Care Act last week. The subsidies were given to insurance companies to help offset costs from lower-income individuals concerning deductibles and other out-of-pocket expenses. It’s meant to prevent premium spikes. And the termination of this subsidy is not just a conservative view or action item, by the way. It’s the opinion of the courts, as the LA Times reported back in May of 2016–it’s unconstitutional:

House Republicans won Round 2 in a potentially historic lawsuit Thursday when a federal judge declared the Obama administration was unconstitutionally spending money to subsidize health insurers without obtaining an appropriation from Congress.

Last year, U.S. District Court Judge Rosemary Collyer broke new ground by ruling the GOP-controlled House of  Representatives had legal standing to sue the president over how he was enforcing his signature healthcare law.

On Thursday, she ruled the administration is violating a provision of the law by paying promised reimbursements to health insurers who provide coverage at reduced costs to low-income Americans.

The judge’s ruling, while a setback for the administration, was put on hold immediately and stands a good chance of being overturned on appeal.

Well, it prompted 18 states to sue the Trump administration over this decision. As with the issue over the Deferred Action for Childhood Arrivals program on immigration, it’s another example of executive overreach under Obama, bypassing Congress on issues that only the legislative branch can legally resolve. Josh Blackman elaborated on this subsidy provision in National Review back in July:

In 2014, a federal judge concluded that with the so-called OPM fix, the “executive branch has rewritten a key provision of the ACA so as to render it essentially meaningless in order to save members of Congress and their staffs.” Allowing the administration to rewrite the law, he wrote, “would be a violation of Article I of the Constitution, which reposes the lawmaking power in the legislative branch.” However, because the plaintiffs in the lawsuit (Senator Ron Johnson and one of his staffers) were not personally injured by OPM’s policy — indeed they benefited — the case was dismissed for lack of standing. While the Obama administration was content to make these illegal payments, the Trump administration should halt them.

Congress is not the only beneficiary of such illegal largess. The ACA employed two strategies to make health insurance more affordable. Section 1401 of the law provides for the payment of subsidies to consumers to reduce premiums. Section 1402 provides payments to insurers to offset certain “cost sharing” fees, such as deductibles and co-pays. But while the ACA funds the subsidies under Section 1401 with a permanent appropriation, to date, Congress has not provided an annual appropriation for the cost-sharing subsidies under Section 1402.

Once again, where Congress would not act, President Obama did so unilaterally. The executive branch pretended that the ACA had actually funded Section 1402 all along, and it paid billions of dollars to insurers. Once again, Mr. Trump is exactly right that this is a “BAILOUT.” And, once again, the payments are a violation of the separation of powers.

Now, we have Jonathan Turley, a constitutional scholar at the George Washington University Law School, reiterating the point that the Obamacare subsidy provision was unconstitutional with Fox News’ Bret Baier last Friday. Turley added that the court ruling made it clear that you have to play within the confines of the U.S. Constitution, and that even benevolent reasons are not good enough to usurp the rule of law  (via RCP):

Can the president get away with stopping ObamaCare payments?

BRET BAIER, SPECIAL REPORT: Can the president stop Obamacare subsidies? … You’re also the lead counsel for the U.S. House of Representatives in the challenge to the actions by the Obama administration to set up these subsidies in a court case that ended in victory. So, this is a Constitutional move.JONATHAN TURLEY, GEORGE WASHINGTON UNIVERSITY LAW PROFESSOR: The original order that has just been rescinded was unconstitutional by finding of a federal court. The court found it not only violated Article One of the Constitution, it violated the health care law itself. Because Congress had the ability to grant subsidies under the federal law but it chosen not to. In fact, the administration had come to Congress and asked for this money and Congress said no. And then the president say alright, I’ll just order it directly from the Treasury. Well, you can’t do that. The defining power of Congress is the power of the purse. And the federal judge issued a historic ruling and said this is wrong, you can’t violate the Constitution no matter what your motivations are, no matter what you’re complaining about with Congress, you have to play within the rules of the Constitution.

Nets Forget Obama Admin Championed Bergdahl as a ‘Hero’ Coming Home

Newsbusters

by Nicholas Fondacaro

In a military courtroom in Ft. Bragg, North Carolina on Monday, Sgt. Bowe Bergdahl pleaded guilty to charges of desertion and misbehavior before the enemy and faces up to life in prison. Back in 2014, President Obama traded five dangerous terrorists to get Bergdahl back. And in a flawed political calculation, the administration championed him as a ‘hero.’ But considering the massive blowback that followed the ill-advised move, the Big Three Networks omitted that from their Monday evening reports.

Image via theconservativetreehouse.com

 

Following the trade, Obama held a flashy press conference in the White House Rose Garden with Bergdahl’s parents to commend the man who left his post to enter the arms of the Taliban. During that time, now infamous National Security Advisor Susan Rice told ABC that:

That is really not the point. The point is that he’s back. He’s going to be safely reunited with his family. He served the United States with honor and distinction and we’ll have the opportunity, eventually, to learn what has transpired in the past years, but what’s most important now is his health and well-being. That he has the opportunity to recover in peace and security and be reunited with his family, which is why this is such a joyous day.

And on Monday’s World News Tonight, ABC’s Brian Ross complained about how Bergdahl was treated by the public. “…The homecoming celebration for Bergdahl was short lived. Bergdahl was attacked for risking the lives of fellow soldiers who went searching for him,” he bizarrely bemoaned. Ross then pushed Bergdahl’s claim that President Trump was the reason he couldn’t get a fair trial. “Bergdahl says a fair trial would have been impossible given the words of Donald Trump.”

“We may as well go back to kangaroo courts and lynch mobs that got what they wanted,” Bergdahl said in an interview. “The people who are to the point of saying, yeah, just shoot him, you can never convince those people to change their minds.”

By entertaining Bergdahl’s claims, Ross was aiding the suggestion that the military court couldn’t possibly be impartial and operates at the whim of the president.

Bergdahl’s desertion to the Taliban was devastating to the members of his platoon who risked their lives to find him. And when Obama finally made the trade they spoke out against it and led the charge against the administration’s false claims that he was a hero. The only mention of them came from NBC who found one who said: “The fact that he’s admitted that he did desert and misbehaved in front of the enemy has brought a lot of vindication and peace to me.”

And when it came to reporting about the efforts to find Bergdahl in the wake of his desertion, the networks asserted that only two soldiers were wounded in the search. “At least two American service members were seriously wounded while searching for Bergdahl,” reported Anchor Anthony Mason on CBS Evening News.

But according to a CNN report from 2014, written by Jake Tapper, there may have been six soldiers killed in the process. “Interviews with soldiers familiar with the specific missions in which the six died suggest the charge is complicated — but not without merit given how much the 501st Parachute Infantry Regiment became focused on “PR” — personnel recovery — after Bergdahl vanished from his guard post on June 30, 2009,” Tapper wrote.

Despite how unfavorable the trade for Bergdahl was, the liberal networks clearly would do anything to protect the image of the Obama administration.