Recently, the media has been headlining statements that Obamacare was declared unconstitutional, on May 12, 2016, by a Federal District Judge because the court found that Obamacare’s Section 1402 reimbursements paid to insurers had not been validly appropriated by Congress.
The media is wrong to classify all of Obamacare unconstitutional. The judge’s ruling was directed at reimbursements to insurers to cover Obamacare’s dictates that co-pays, deductibles and similar charges for low-income individuals must be reduced (referred to as Obamacare “cost-sharing reductions”).
The Government had promised to reimburse insurers for these reductions. These reimbursements were estimated to exceed 130 billion dollars over 10 years. A number big enough that its loss will surely damage the insurers participating on the Obamacare exchanges.
All expenditures by the Government must be authorized and appropriated by the Congress of the United States. If there is no Congressional Appropriation, there cannot be an expenditure. “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . .” Art. I, § 9, cl. 7 of the U. S. Constitution; see also United States v. MacCollom, 426 U.S. 317, 321 (1976) (“The established rule is that the expenditure of public funds is proper only when authorized by Congress, not that public funds may be expended unless prohibited by Congress.”).
An appropriation must be expressly stated, it cannot be inferred or implied.
The House of Representatives instituted this lawsuit because the Obama administration’s reimbursements to insurers, without a valid appropriation, were a violation of the U. S. Constitution’s “separation of powers.”
The Democratic party’s Obamacare authors, when writing section 1402 of the law, did not appropriate any money for Section 1402. The Democratic party controlled Congress could have remedied this by making an appropriation for Section 1402 after Obamacare became law, but they did not.
The House of Representatives instituted this lawsuit because the administration’s reimbursements to insurers, without a valid appropriation, were a violation of the U. S. Constitution’s “separation of powers” between the Executive Branch and Congress.
The Obama administration was sure that the the House of Representatives’ lawsuit would be dismissed on the basis of standing. The adminstration’s position was generally supported by legal scholars. But, it seemed to me that any harm to the constitutional rights of Congress, by the Obama administration, would be enough to grant the House of Representatives standing and allow the suit to move forward.
The Obama administration’s constant abuse of executive power had made it overly confident that it would nevertheless win even if standing was granted. I was optimistic that the “separation of powers” question would be decided in the House of Representatives’ favor.
So now, Obamacare is severely injured but not mortally wounded. The way to save the patient is to have Congress pass a valid appropriation for Section 1402. But, I don’t see that happening in an election year. So, the only hope for the Obama administration is to seek a reversal on appeal. I don’t think that will happen either.
This all could have been avoided if the authors of the law and the Democratic party controlled Congress would have dotted all the i’s and crossed all the t’s in the law. They did not. Sloppy work.
Now we have to wait and see if this will force insurers to abandon or limit their future participation on the Obamacare exchanges. At a minimum it will increase deductibles and co-pays for consumer policies obtained through Obamacare exchanges.
More unnecessary pain for the citizens, physicians and healthcare insurers of this Country. The Affordable Care Act (Obamacare) is quickly becoming the “Unaffordable Care Act.”