Why don’t the stories say: “President Trump Faithfully Executes Affordable Care Act”?
In report after sky-is-falling report, the journalism wing of the media-Democrat complex castigates the president over his decision to — as the New York Times put it — “scrap subsidies to health insurance companies that help pay out of pocket costs of low-income people.” These subsidy payments are “critical” to sustaining the “Affordable Care Act.” Without them, the Grey Lady frets, “President Barack Obama’s signature domestic achievement” could “unravel.” To add insult to injury, the paper implies that Trump’s “determination to dismantle [Obamacare] on his own” is a malign attack on the rule of law, coming only after Republicans reneged on their vow to repeal it by legislation.
It’s ironic. Notwithstanding the many outrageous, mendacious things the president says and tweets, the press is aghast that his “fake news” tropes against mainstream-media stalwarts resonate with much of the country. Well, if you want to know why, this latest Obamacare coverage is why. What Trump has actually done is end the illegal payoffs without which insurance companies have no rational choice but to jack up premiums or flee the Obamacare exchanges. The culprits here are the charlatans who gave us Obamacare. To portray Trump as the bad guy is not merely fake news. It’s an out-and-out lie.
Which is to say: It’s about as honest as the Democrats’ labeling of Obamacare as the Affordable Care Act.
The subsidy payments to insurance companies may be “critical” to sustaining the ACA, but they are not provided for in the ACA. The Obamacare law did not appropriate them. No legislation appropriates them. They are and have always been illegal. In essence, we are back to the question we asked a couple of weeks ago in connection with Trump’s then-anticipated decertification of Obama’s Iran Nuclear Deal: It is not whether the president should take this action; it is why he failed to take it before now.
Under the Constitution, no funds may be paid out of the treasury unless they have been appropriated by Congress. It is not enough for lawmakers to authorize a government program or action. The House and Senate must follow through with a statute that directs payment for the program or action. Standing alone, authorization is just aspiration; it does not imply appropriation. Congress authorizes a lot of things, but only the things for which Congress approves the disbursal of public money are permitted to happen.
The Affordable Care Act, so-called, was passed by the then-Democrat-controlled Congress and signed into law by President Obama in 2010. It established health-insurance markets known as the Obamacare “exchanges.” In the exchanges, people whose household income falls between 100 and 400 percent of the poverty level qualify for two kinds of financial assistance.
The first is a tax credit to reduce insurance premiums, authorized under ACA Section 1401. The ACA supports these premium reductions with a permanent appropriation — i.e., the appropriation is built into the law; Congress need neither appropriate funds in a separate statute nor renew the funds annually.
The second form of financial assistance on the exchanges is reduction in “cost-sharing,” under ACA Section 1402. “Cost-sharing” is made up of “deductibles, coinsurance, copayments, or similar charges.” Unlike the premium reductions, the cost-sharing reductions are not accomplished by tax credits. Instead, insurance companies are required to reduce what they would otherwise charge.
Why would insurance companies do that? Largely because they are supposed to get paid back. Section 1402 authorizes the secretary of health and human services to reimburse the insurance companies the amount of these reductions — i.e., it sets up an arrangement whereby the companies can be made whole by shifting the cost to taxpayers. But there is no appropriation for this arrangement. If Congress wants to permit reimbursement, it must appropriate funds in a separate statute — such as an annual appropriations act.
ACA enthusiasts insist that these two provisions are obviously intended to go hand-in-hand: Were the insurance companies not reimbursed, their cost-sharing losses would so outstrip what they reap from Obamacare (which forces people to buy their product) that they would abandon the exchanges — which could rupture the ACA structure.