The Un-Affordable Care Act

Congress returned to work on Monday. You could tell by the rhetorical flame and smoke issuing from Capitol Hill as early as the weekend in response to President Donald Trump’s latest executive actions, this time aimed at Obamacare.

Democrats are accusing the president of every bad thing they can think of — “gutting” or “sabotaging” the Affordable Care Act (ACA), “health-care arson,” and being “perverse” and “cruel.”

Former White House advisor Steve Bannon said Mr. Trump will “blow that thing up.” Such terminology seems to give credence to the critics’ notion that the president is not out to improve health care but to destroy it, no matter who gets hurt.

The White House firmly denies any such motive, claiming that the president only wants to make things better, offering people more affordable choices than Obamacare foists on them.

The executive actions Mr. Trump signed at the end of the week touched on a number of different ACA issues. He endorsed associated health plans, allowing small businesses to get together to purchase insurance in bulk; and a proposal to expand employers’ ability to offer HRAs to their employees, which could provide the basis for patients to exercise more control of their health care payments.

These are important and deserve discussion on their own, but the main combustible by far was the stroke of a pen that ended Obama’s scheme of cost-sharing subsidies to insurers.

Democrats cited the nonpartisan Congressional Budget Office report released in August estimating that premiums for the most popular Obamacare plan would be 20 percent higher in 2018 and 25 percent higher by 2020 if the payments were canceled.

The president insists that his intention is not to harm ordinary Americans but to put an end to the “bailout” of insurance companies.

South Carolina’s Republican Senator Lindsay Graham noted that “Aetna’s had a 470-percent increase in their stock prices since the ACA. Cigna, 480 percent. Humana, 420 percent. The president is not going to continue to throw good money after bad — give $7 billion to insurance companies — unless something changes about Obamacare that would justify it.”

While Democrats are claiming to be bravely standing up for poor Americans who desperately need health insurance, they are deliberately shrinking from the inconvenient truth that the massive payouts to insurers (whether fairly characterized as a bailout or not; after all, they were required by ACA to offer low rates) were illegal.

The economic underpinning of Obamacare was an unconstitutional subterfuge. It was known from the start that the burden placed on insurers was unsustainable, and that if they were not subsidized they would flee the “exchanges” called for in the ACA plan, leaving millions without adequate coverage. Truly, the ACA was misnamed; it should have been called the Un-Affordable Care Act.

But the necessary subsidies cannot be transferred to those companies without Congressional appropriation, as ACA itself clearly states. Since Congress refused to vote the appropriations (presumably to avoid being accused of bailing out big insurance companies), the Obama administration simply ordered the payments, even though it had no legal or constitutional authority to do so. President Trump’s executive order thus restores Obamacare to the confines of the Constitution which he — and his predecessor — pledged to faithfully uphold.

The financial and administrative imponderables of the Affordable Care Act which baffle the non-expert in this instance offer a simple constitutional principle that everyone can grasp: Only Congress can appropriate the funds for these insurer subsidies; the president cannot do so under the law. In fact, a lower federal court has ruled that the subsidies were an unconstitutional usurpation of the legislative branch, which alone must decide whether or not to include those amounts in annual spending bills. Presidential fiat will not do.

It would be going too far, however, to assert, as the conservative National Review did, that “this should not be thought of as a health policy decision, but rather as a constitutional one. It is simply illegal for the federal government to spend money that Congress hasn’t authorized it to spend.”

It is not realistic, really not possible, to think of it only as a constitutional matter. Millions of people could indeed be hurt if Congress does not now authorize the subsidies or find some other solution.

Despite the partisan warfare, there are efforts being made to work out a compromise. Senator Graham said the president called Sen. Lamar Alexander (R-Tenn.) and is “encouraging him to get a bipartisan deal that would have some flexibility” from the existing law.

“I hope that we can get a deal between Senator Alexander and Patty Murray that would allow us to continue the payments, but get reform,” Graham told CBS, referring to the chairman and ranking Democrat on the health committee.

That would seem to be the most realistic and humane way forward. The lawmakers in Washington may not really be so far apart, despite the rhetorical extremes. None want to be the cause of or get the blame for a catastrophic collapse of the health-care system and the consequences for the economy as well. But as lawmakers they also must recognize the compelling constitutional argument; you can’t help people by breaking the law.