GOP report calls ObamaCare payments unconstitutional

An investigation by House Republicans argues that the Obama administration is illegally making certain payments under ObamaCare and that officials initially recognized they did not have authority to do so before reversing course. 

House Republicans argue that the administration is unconstitutionally making ObamaCare’s “cost sharing reduction” payments to insurers — which help lower out-of-pocket healthcare costs for low-income ObamaCare enrollees — without a congressional appropriation.

{mosads}Democrats have derided the GOP investigation as simply part of a witch hunt against the healthcare law. They also note that House Republicans have already sued over the payments, which Democrats say makes a separate congressional investigation merely political.

“House Republicans are not conducting meaningful oversight, but are instead taking every opportunity to undermine the law and root for its failure,” said Reps. Sandy Levin (D-Mich.) and Frank Pallone Jr. (D-N.J.).  

“Unfortunately, they are taking actions that will deny much-needed healthcare coverage to their own constituents.”

The Republican report, released Thursday by Republican staffers of the Ways and Means Committee and the Energy and Commerce Committee, finds that the administration initially recognized that it did not have the authority to make these payments.

A 2012 memo from the Treasury Department to the White House Office of Management and Budget (OMB), included in the report, stated that “there is currently no appropriation to Treasury or to anyone else, for purposes of the cost-sharing payments.”

At a hearing Thursday where Republicans pressed administration officials on the report, Mark Mazur, the assistant Treasury secretary for tax policy, called that memo simply “one input into a decision process,” which is “not dispositive by itself.” 

The report further noted that the administration actually submitted to Congress a request for an appropriation for the program in 2013.

But later that year, Ellen Murray, a Health and Human Services Department official, withdrew the appropriations request in a phone conversation with the staff director of the Senate Appropriations Committee, the report said. 

It added that such a step is “highly unusual” in a phone conversation, rather than through a formal written request. 

In late 2013, the OMB then produced a legal memorandum to justify making the payments without a congressional appropriation. 

Some officials at the IRS had concerns about the legal authority for the payments, too, but were then shown the OMB legal memo and, with a few exceptions, were satisfied, according to testimony to the committees.

The committees say the administration has now spent more than $7 billion without a congressional appropriation.

In the lawsuit, the administration argued that it had authority to make the payments without a congressional appropriation because the healthcare reform law linked the payments to its separate tax credits “inextricably.” 

Therefore, the administration said, it could use the same authority for cost-sharing reductions as it did for the tax credits.

A federal judge rejected this argument, ruling for the House GOP, though the decision has been appealed.

House Republicans also argue that the administration has obstructed their investigation by failing to provide documents even after subpoenas were issued. 

Democrats counter that the administration has withheld some documents because of longstanding protections for internal administration deliberations, and they point to a range of voluntary interviews given by administration officials to the committees. 

At the hearing Thursday, Ways and Means Chairman Kevin Brady (R-Texas) asked officials from HHS, Treasury, IRS and OMB if they would pledge to comply with the subpoenas that had been issued to them.

The officials declined to say yes, instead noting that discussions between the staffs will continue and that the administration is “committed to cooperating with the committee,” in the words of Acting Deputy HHS Secretary Mary Wakefield. 

Republicans dismissed these statements, noting that staff discussions so far have led to documents being withheld or redacted. 

Lawmakers also pressed the officials to identify where in the text of the law the administration gets the authority to pay out the cost sharing reductions without an appropriation. 

Mazur, the Treasury official, did not point to a specific location, but noted that in reading the law “as a whole,” there is an “integrated” system where the authority for the tax credits also provides authority for the other payments.  


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