A No-Brainer for the House GOP
In addition to all of this, Obama has no lawful authority to pay insurers through the risk-corridor program, even in the very unlikely event that payments don’t exceed receipts. Any payments would require an appropriation, and Congress hasn’t appropriated any money for the risk corridors. Yet the Obama administration is now saying the money for such payments can be understood as “user fees,” which—the administration says—“section 1342 [of Obamacare] authorizes the collection and payment of.” In truth, section 1342 contains fewer than 500 words, none of which is “user,” “fees,” or anything akin to “user fees.”
The nonpartisan Congressional Research Service notes that federal agencies are prohibited “from making payments in the absence of a valid appropriation,” and that Obamacare’s risk-corridor section “would not appear to constitute an appropriation.” It adds that agencies “may not create a revolving fund absent specific authorizing legislation,” and “there does not appear to be sufficient statutory language to create a revolving fund.”
So, in addition to providing a taxpayer bailout for insurers, the risk-corridor program has become a vehicle for presidential lawlessness.
Repealing the risk corridors is a way of putting the issues of Obamacare, cronyism, and the rule of law front and center this fall. The House, which now seems ready to move, should do so expeditiously. Bill Cassidy (R-La.) and Leonard Lance (R-N.J.) have championed legislation to repeal the risk corridors, with the active support of Energy and Commerce Committee chairman Fred Upton. If the House passes such legislation by early September, Democrats in the Senate and the White House will have to defend a program that’s bad policy and bad politics: an unholy alliance between Big Government and Big Insurance that prospers at the expense of taxpayers—and voters.
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