http://thehill.com/blogs/pundits-blog/healthcare/287906-panic-prompted-obamacare-lawlessness

Panic prompted ObamaCare lawlessness

Senior Obama administration officials took a series of decisions beginning in late 2013 that ranged from the reckless to the illegal in an effort to keep insurers participating in health insurance exchanges.

A report issued last week jointly by the House Ways and Means and Energy and Commerce committees explores how the administration came to unlawfully funnel $7 billion in unappropriated money to insurers through a single ObamaCare program.

The program — known as cost-sharing reduction (CSR) — requires insurers to reduce deductibles and other out-of-pocket spending for certain low-income people who signed up for coverage through health insurance exchanges. In turn, the statute authorized the administration to seek an appropriation from Congress to reimburse insurers for the cost of providing these coverage enhancements.

The congressional report chronicles how the administration determined as early as 2010 that it needed an appropriation to make CSR payments to insurers. In April 2013, the president submitted a budget to Congress formally requesting the appropriation.

But in July, the Senate Appropriations Committee, then controlled by Democrats, expressly denied the president's request. Sometime after Congress refused to fund the program, the administration contrived the theory that it could spend money without an appropriation.

Senior officials at the Office of Management and Budget (OMB) drafted a legal memorandum during late 2013 declaring that the government could make billions in CSR payments to the insurance industry without congressional approval. The administration began making the unlawful payments in January 2014.

Although the administration continues to stonewall the congressional investigation into how it arrived at this decision, the committees have learned that several Treasury Department officials raised concerns about the OMB memo. Those officials were permitted to read the document, but were forbidden to make copies or take notes.

The administration has denied Congress even that courtesy, defying congressional subpoenas for copies of the OMB memorandum and other material relevant to the investigation. It has supplied them with a memorandum that Treasury Secretary Jack Lew signed in January 2014 directing his subordinates to begin making CSR payments. But that memorandum has been redacted to omit the department's legal justification.

The administration also has slapped a gag order on current and former employees, instructing them not to answer the committees' questions about the legality of the unappropriated spending.

The administration has good reason to stonewall. Its ostensive reason — that the legitimacy of the CSR payments is under review by the courts — is a smokescreen. The Supreme Court settled that matter in a 1929 case arising from the Teapot Dome Scandal, holding that congressional inquiries cannot be thwarted by ongoing litigation.

The administration's defiance has a much simpler explanation: Its actions have no legal basis. Even The New York Times has acknowledged that if the administration were permitted to continue spending unappropriated money, "it could have major — some might say huge — consequences for our constitutional democracy."

At least one federal judge agrees. In a lawsuit filed by the House of Representatives, Federal District Court Judge Rosemary Collyer in May ruled that the CSR payments were unlawful. The Justice Department has appealed Collyer's ruling.

My July 8 testimony before the House Energy and Commerce Subcommittee on Oversight and Investigations showed how the government's unlawful spending on the CSR program fits into a broader pattern of malfeasance in ObamaCare implementation. That malfeasance includes decisions made during the first half of 2014 to unlawfully divert $3.5 billion to $4.5 billion from the Treasury to insurance companies through the "reinsurance" program. It also involves the attempt by the government to turn the law's "risk corridor" program into a new version of the Troubled Asset Relief Program (TARP), forcing taxpayers to cover losses resulting from bad business decisions made by insurance executives.

Those abrupt and unlawful policy reversals were occasioned by a serious miscalculation of demand for health insurance among relatively healthy people.

It turns out that millions don't want it, unless premiums are steeply discounted. ObamaCare does the opposite for people in relatively good health, requiring insurers to overcharge them for a product they may not want or need, while discounting premiums for those in poorer health.

The result is a dysfunctional "market" that attracts high-risk enrollees and repels low-risk ones, leaving insurers with a losing proposition: a pool of customers who are disproportionately older, less well and paying premiums that are too low to cover their medical bills.

When the consequences of this dysfunctionality dawned on the administration, panic set in, prompting a series of regulatory improvisations providing for the payment of billions in corporate subsidies to the insurance industry.

Although the administration is not especially fond of insurers (as the president demonstrated this week with his renewed embrace of the "public option"), the exchanges would collapse without them. To avoid the political embarrassment of insurers withdrawing en masse from the exchanges, it has chosen to supply them with unlawful payments and stonewall congressional inquiries into this misconduct.

The administration's actions raise concerns that transcend the fractious politics of ObamaCare: They are institutional and constitutional in nature. Institutional because Congress's core lawmaking and oversight functions are being effaced. Constitutional because its power of the purse is under legal assault.

In such circumstances, Congress cannot be passive. It must act to require the administration to follow the law.

Badger, a former White House and U.S. Senate policy adviser, is a senior fellow with the Galen Institute. This piece was adapted from his July 8 testimony before the House Energy and Commerce Subcommittee on Oversight and Investigations.

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