Presidential Healthcare Subsidies

We thought just for an instant
We could see the future
We thought for once we knew
What really was important
--Til Tuesday

Another important part of President Trump's healthcare-related executive orders signed last week is that they direct the treasury and health and human services secretaries to cease making payments to heath insurance companies that subsidize policies for people that qualify for subsidies under Obamacare.

Judge Nap explains why those payments were unconstitutional.

Under the Constitution, it is Congress's responsibility to direct federal funds for expenditure. The congressional process requires two steps. First, Congress must create the program using its legislative process. Then, it must pass a second bill that appropriates money from the federal treasury and makes it available to the president for the purpose stated in the first law.

Although the Affordable Care Act become law in 2010, its provisions required several years to roll out. By the time the subsidy provisions of Obamacare took effect, Republicans had regained control of Congress. When President Obama asked Congress to appropriate the funds necessary to subsidize the system, Congress declined to do so.

This is completely within Congress's legal scope. The framers anticipated the very situation confronting Obama and Congress: an increasingly unpopular law no longer supported by Congress that costs money to enforce, with a president eager to enforce it. In such a situation, the framers clearly put the power of the purse in the hands of Congress. "No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law."

When Obama was denied the means to enforce the subsidy portion of his signature legislation, he spent the money anyway. He directed his treasury and HHS secretaries to take fund appropriated for other programs and make subsidy payments to the seven largest health insurance carriers in the United States.

This was illegal.

Trump, after making the same unlawful payments for the first nine months of his presidency, decided to cease the practice last week. Although he should have done so his first day in office, Trump did the constitutionally correct thing.