During his two terms in office President Obama conducted an assault on the Constitution and on limited government in the name of the higher good as he saw it. Obama’s lawlessness was little noted in the mainstream media other than in disparaging accounts of the Republican and conservative reaction to Obama.
President Trump appears to be a bull in the White House china shop. He is portrayed as a kind of Strangelovian madman. Yet in many respects he seeks to restore the rule of law where it was abrogated by Obama. As a reaction to Obama’s lawlessness, Trump stands in relation to the Obama era as Jimmy Carter did to the Nixon era.
Trump’s cessation of subsidy payments to Obamacare insurers represents a perfect example. David Harsanyi notes the (overdue) restoration of legality effected by Trump’s action in this Federalist column as does Andrew McCarthy in this NRO column. John Hinderaker did the honors for us last night here.
When it comes to President Trump, hysteria is the only note the Democrats can strike. According to Nancy Pelosi, in terminating the subsidy payments Trump is guilty of “sabotage.” What else is new?
Robert Pear covers the story along with several other reporters in the New York Times account “Trump to scrap critical health care subsidies, hitting Obamacare again.” The headline is almost funny. It sounds like a variation of the old joke. President Trump, when did you stop hitting Obamacare?
In the fourth paragraph of their story, Pear et al. get around to quoting the White House statement on Trump’s action: “The government cannot lawfully make the cost-sharing reduction payments.” Say what?
Sometimes you have to read the Times like the citizens of the Soviet Union read Pravda, to infer the real news buried in the propaganda. Pear is a good reporter and his story isn’t that bad, but the reader still has to struggle to understand what’s happening. Congress can and must authorize the payments that are in issue if they are to be made at all.
Don’t tell Mrs. Pelosi, but that’s the way it’s supposed to work. In her case, I guess, we really did have to pass the bill in order to find out.
The issue of legality, it should be noted, goes back to the lawsuit brought by the House of Representatives under Speaker John Boehner. There seems to be no love lost by anyone for Boehner, but we owe him a debt of gratitude for raising the issue.
Carl Hulse is the New York Times reporter who covered the House lawsuit brought against the HHS Secretary. Let’s take a look back. Hulse’s stories on the lawsuit are all worth reading in one way or another.
Earlier this year, for example, Hulse observed: “Obama unwittingly handed Trump a weapon to cripple the health law.” Hulse held out hope that Obama’s lawlessness would find shelter in the doctrine of standing, but consider this:
“The administration should not have found an appropriation where none existed,” said Nicholas Bagley, a University of Michigan law professor who has studied and written about the issue. “The Obama administration argument that the Affordable Care Act included an appropriation for the cost-sharing payments never held water.”
Judge Rosemary M. Collyer agreed with that assertion last year. She ruled that the Obama administration had no explicit authority to pay as much as $130 billion over 10 years to insurance companies to cover out-of-pocket health costs for millions of lower-income Americans obtaining insurance on the new health exchanges. At the same time, she found that the Republican-led House had the standing to sue the administration — a potentially far-reaching decision that many constitutional law experts predicted would be overturned on appeal, causing the suit to be dismissed.
I love this Hulse story too: “In a secret meeting, revelations on the battle over health care.” Forgive the length of the excerpt. In a rightly ordered world, this would have been big news:
On Jan. 13, 2014, a team of Internal Revenue Service financial managers piled into government vans and headed to the Old Executive Office Building for what would turn out to be a very unusual meeting.
Upon arrival, the I.R.S. officials, some of whom had expressed doubts that the Obama administration had the proper authority to spend billions of dollars on a crucial element of its health care law, were ushered into a conference room.
There, they were presented with an Office of Management and Budget memo laying out the administration’s justification for spending $3.9 billion on consumer health insurance subsidies. They were told they could read it but could not take notes or make copies. The O.M.B. officials left the room to allow their visitors a moment to absorb the document, and then returned to answer a few questions and note that Attorney General Eric H. Holder Jr. had been briefed and signed off on the legal rationale.
“It was not a common practice in my 10 years in government at the three agencies where I worked,” said David Fisher, a former I.R.S. financial risk officer, recounting the odd meeting during a deposition on May 11 conducted by investigators for the House Ways and Means Committee.
The clandestine nature of the session underscores the intense conflict over the spending, which is the subject of a federal lawsuit in which House Republicans have so far prevailed, as well as a continuing investigation by the Ways and Means and the Energy and Commerce Committees. It also shows that more than six years after President Obama signed the Affordable Care Act into law, Republican opposition has not waned.
After failing to win congressional approval for the funds, the Obama administration spent the money anyway and has now distributed about $7 billion to insurance companies to offset out-of-pocket costs for eligible consumers. The administration asserts that the health care legislation provided permanent, continuing authority to do so, and that no further appropriation was necessary.
Mr. Fisher, for one, did not agree, and his testimony is the first to reveal that some within the administration challenged the spending. Beginning in late 2013, he and his supervisor began having qualms about how the White House was planning to proceed. In combing through documents to make sure his agency could defend the spending in future audits, Mr. Fisher said he came up empty.
“Cost-sharing reduction payments are not linked to the Internal Revenue Code, as far as I could tell, directly anywhere,” Mr. Fisher, now in the private sector, said in his deposition, made public last week by House Democrats who feared Republicans would release selected excerpts. “There is no linkage to the permanent appropriation, nor is there any link to any other appropriation that was indicating what account these funds should be paid from.”
On May 12, 2016, Hulse reported Judge Collyer’s decision finding the subsidy payments illegal in “Judge backs House challenge to key part of health law.” Hulse quoted the aptly named Obama White House spokesman Josh Earnest doing his Baghdad Bob routine:
Josh Earnest, the White House press secretary, dismissed the judge’s ruling as another instance when Republicans have sought to overturn the Affordable Care Act through the courts. He said the dispute should be settled by voters, not judges.
“This suit represents the first time in our nation’s history that Congress has been allowed to sue the executive branch over the interpretation of a statute,” Mr. Earnest said. “These are the kinds of political disputes that characterize our democracy.”
He added that the administration was confident in its legal arguments. “They’ve been losing this fight for six years,” Mr. Earnest said of congressional Republicans. “And they’ll lose it again.”
Hulse reported Judge Collyer’s initial decision recognizing the House’s standing to bring the lawsuit in “Judge denies Obama administration quick appeal in House suit against health care law” and subsequently noted Judge Collyer’s refusal to allow an interlocutory appeal of the standing issue here. Judge Collyer’s standing decision elicited a Times editorial in which it assured readers that it was “a baseless lawsuit[.]”
President Trump is to be commended for pulling the plug on the defense of the House lawsuit and restoring the constitutional order to the extent it is in his power to do so.