Showdown over ObamaCare subpoenas quickly escalating

Showdown over ObamaCare subpoenas quickly escalating
© Greg Nash

House Republicans and the Obama administration are clashing over subpoenas for ObamaCare documents. 

Republicans are upping the pressure on the administration, saying officials are withholding documents that Congress has every right to see.

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The administration argues that it is justified in withholding some documents, as predecessors have done, because of the executive branch's interest in protecting the confidentiality of internal deliberations. It says it has cooperated with Republicans by making officials available for interviews and by providing some documents. 

That argument isn’t sitting well with House Ways and Means Committee Chairman Kevin BradyKevin Patrick BradyLawmakers under pressure to pass benefits fix for military families How centrist Dems learned to stop worrying and love impeachment On The Money: Senate passes first spending package as shutdown looms | Treasury moves to roll back Obama rules on offshore tax deals | Trade deal talks manage to weather Trump impeachment storm MORE (R-Texas) or Energy and Commerce Committee Chairman Fred Upton (R-Mich.). They say the administration is stonewalling legitimate oversight. 

“Your refusal to provide the requested documents and information raises serious concerns about the Department’s willingness to be accountable for the lawful execution of laws passed by Congress,” Upton and Brady wrote to Health and Human Services Secretary Sylvia Mathews Burwell on Tuesday. 

“This is the age old fight of executive power versus legislative power,” said Tom Scully, administrator of the Centers for Medicare and Medicaid Services under President George W. Bush. “It's been going on in every administration forever.” 

At issue are two separate portions of ObamaCare. One is the Basic Health Program, which states can choose to implement and is aimed at providing choices for low-income people with slightly too much income to qualify for Medicaid. The other is the law’s “cost-sharing reductions,” which are payments that help lower out-of pocket-costs for low-income ObamaCare enrollees.  

Republicans argue that both initiatives are being illegally funded without a congressional appropriation. In a case brought by House Republicans, a federal judge ruled last month that the administration does not have the authority to pay out the cost sharing reductions, though the decision will be appealed. 

The administration says that it has authority to fund both programs under a permanent appropriation given for the law’s tax credits.  

Democrats say the Republican lawsuit renders the subpoenas unnecessary and argue the investigations are solely for political gain. 

Reps. Sandy Levin (D-Mich.) and Frank Pallone Jr. (D-N.J.), the top Democrats on the two committees, have called the subpoenas part of a “witch hunt” against ObamaCare.   

“These subpoenas are merely part of a larger pattern of wasting taxpayer time and money on undermining the [Affordable Care Act],” they said when the subpoenas were issued. 

Republicans counter that there is no lawsuit over the Basic Health Program and say the administration has been just as resistant to provide information on that. They also complain that the documents provided by the administration have been heavily redacted.

The administration has held firm on not providing some of the documents.

HHS Assistant Secretary for Legislation Jim Esquea, in a letter sent to Brady, cited “significant Executive Branch confidentiality interests in internal deliberations” for withholding some information from the committees. 

The confrontation has taken on a new dimension since the release last week of a transcript of a deposition from former IRS official David Fisher. After being subpoenaed, he revealed that some IRS officials, including him, had raised concerns about the legality of the cost sharing reduction payments in 2014. 

Fisher said most of the IRS officials were assuaged of their concerns after a meeting with White House officials in January 2014. The Office of Management and Budget distributed a legal memo at the meeting that justified the legality of the payments, Fisher said. The IRS officials were not allowed to take notes or keep copies of the memo, an arrangement that Fisher called “a little unusual.”

Republicans have issued a subpoena to the White House for a copy of the memo, but the White House has declined to provide it. 

“The Executive Branch has significant confidentiality interests in such pre-decisional deliberations and analysis,” Tamara Fucile, OMB’s Associate Director of Legislative Affairs, wrote to Upton and Brady in May. “In light of the chilling effect on future deliberations that would follow their disclosure, the Executive Branch endeavors to maintain the confidentiality of its internal deliberations.” 

The OMB said it could give the committees a “summary” of the legal argument made in the memo, but on a call with the OMB, Republican committee staff rejected that offer. The Republicans say that a summary written in 2016 would not shed light on the internal deliberations being made in 2014. 

Fisher in his deposition also described a memo on the payments that was approved by Treasury Secretary Jack LewJacob (Jack) Joseph LewHogan urges Mnuchin to reconsider delay of Harriet Tubman bill Mnuchin says new Harriet Tubman bill delayed until 2028 Overnight Finance: US reaches deal with ZTE | Lawmakers look to block it | Trump blasts Macron, Trudeau ahead of G-7 | Mexico files WTO complaint MORE

The two House committees have obtained a copy of that memo, but Republicans say about a third of it is redacted.

Republicans argue that “confidentiality interests” are not a valid legal reason to withhold information, given that the administration has not invoked formal executive privilege. 

Democrats argue the administration is simply following a precedent set by previous administrations.

“It’s standard practice for government agencies to redact internal deliberations,” said a Ways and Means Democratic aide. “The Republicans are just upset because they’re not finding skeletons in the closets.” 

William Burck, former special counsel to President George W. Bush, now at the law firm Quinn Emanuel Urquhart & Sullivan, said that it has been common for administrations to invoke executive privilege to protect documents. 

“It's a common practice over the course of many administrations,” he said. 

While the Obama administration has not formally invoked executive privilege in this case, Burck said the assertion that deliberations are confidential can serve as a “warning” that privilege will be invoked.

The House committees have also conducted over 10 voluntary interviews with current and former administration officials on the cost sharing reductions, including with Marilyn Tavenner, the former administrator of the Centers for Medicare and Medicaid Services. 

But Republicans say that these interviews were largely unhelpful because administration lawyers prevented the officials from discussing internal deliberations.  

Fisher is the only official who has discussed internal deliberations on the cost sharing reductions, and only after he was subpoenaed, according to a Democratic Ways and Means aide.