As he looks for a way forward on keeping his promise to repeal ObamaCare, President Trump needs to find a better way to incentivize individual members of Congress to work harder to come to agreement on a bill that actually keeps the promise he made, by repealing the core elements of ObamaCare. Fortunately, he has a card left to play, and it’s not just any card, it’s the Ace of Spades. He could, by unilateral action – simply signing a memorandum to the Director of the Office of Personnel Management – remove Congress’ illegal special exemption from the law, and make members of Congress and their staffs live under ObamaCare without benefit of the generous illegal taxpayer-financed subsidy each now receives.
Congressional leaders, and likely even some on his own legislative affairs staff, will push back hard. They will advise the president against this course of action. That’s not a good way for a new administration to get started with Congress, they’ll say, especially for a president relatively new to politics, one who’s still finding his footing in the nation’s capital.
How to counter that argument? Simple. Tweak the memo. He could send a memo now directing that the exemption be removed at a date certain in the near future – say, October 1, the start of the new fiscal year. That would create a legislative sword of Damocles hanging over members’ heads. The clock would be ticking, with a six-month countdown. And the onus would be on them – repeal ObamaCare within six months, or live under it the way the law says you were meant to, and pay the same prices average Americans are paying.
You want to help members of Congress better understand the financial pain their constituents are feeling as a result of ObamaCare, with its skyrocketing premiums, and give them a personal stake in the law’s repeal? Remove that illegal subsidy. Staff and spouses will start screaming bloody murder.
Of course, that’s why they sought and received this illegal subsidy in the first place. Back in 2013, as the January 1, 2014 implementation date for ObamaCare’s individual and employer mandates approached, members of Congress were worried less about how the law would affect their constituents than they were about how the law would affect themselves and their staffs. Buried in the law’s 2,000-plus pages was Section 1312(d)(3)(D), which requires members and their staffs to leave behind their generous Federal Employee Health Benefits Program health plans and instead purchase their health insurance directly through the ObamaCare exchanges, without benefit of an employer subsidy. That requirement, like the individual and employer mandates, would kick in on January 1, 2014.
After heavy lobbying by leaders of both parties on both sides of the Capitol dome, President Obama came to their rescue. He directed the Office of Personnel Management to issue a rule – now codified as 78 Fed. Reg. 60653-01 – declaring Congress itself a small business (!), the necessary subterfuge to set them up for the kicker: Because Congress was deemed a “small business,” “the DC Health Link Small Business Market administered by the DC Health Benefit Exchange Authority is the appropriate SHOP from which Members of Congress and designated congressional staff will purchase health insurance in order to receive a Government contribution.”
It was necessary to find a way to let members and staff into the small business exchange for a simple reason – it was the only way they could maintain their “employer contribution” toward their premiums. Those “contributions” – illegal taxpayer-financed subsidies, in reality – are worth about $5,000 for an individual policy, and close to $12,000 for a family policy. If members and staff had been required to purchase through the individual exchanges, as the law clearly intended, they would have had to pay their premiums on their own.
The good news is, what was done by one president with unilateral executive action can be undone by another president with unilateral executive action. Doing so would raise the temperature on Congress to get a real repeal bill on his desk before the end of the fiscal year, or suffer real personal consequences.
Further, taking such action would show that Trump is taking another step toward fulfilling his promise to “drain the swamp.” Little rankles the heartland as much as the perception that there are different laws, rules, and treatment for the benefit of the national capital’s ruling class. In this case, perception actually is reality. I’ve never seen a poll that showed less than 75 percent support for ending Congress’ illegal special exemption from ObamaCare.
So, President Trump – send a memo to the Office of Personnel Management directing them to announce that Congress’ illegal special exemption will be removed, effective October 1, 2017. Light a fire under Congress to come to agreement on a bill living up to your promise to repeal ObamaCare, and drain the swamp at the same time. It’s a winner all around.
Jenny Beth Martin is co-founder of Tea Party Patriots, the largest national tea party group in the country.
The views expressed by contributors are their own and are not the views of The Hill.