Editor's Note: An expanded version of this op-ed is available here.
Congress' ongoing failure to repeal Obamacare means ordinary citizens will continue to suffer that law's rising penalties, wage cuts, reduced choice, rising premiums, eroding coverage, administrative burdens, and collapsing markets. But don't worry, members of Congress will continue to enjoy special exemptions and illegal subsidies that spare them from the burdens of that law.
Frustrated with Congress' impotence, President Trump has threatened to terminate those exemptions and subsidies. "If a new HealthCare Bill is not approved quickly," he tweeted recently, "BAILOUTS for Members of Congress will end very soon!" Not only should Trump halt those measures immediately, the Justice Department should investigate whether government employees broke any laws by granting Congress that special treatment.
Back when President Obama was implementing Obamacare, his spokesman promised, "Members of Congress will not receive anything that is not available to the public." Indeed, Obamacare explicitly requires Congress to live under the same rules as everyone else by: (1) kicking members and staff out of the Federal Employees' Health Benefits Program; (2) leaving them to enroll in health insurance through the law's individual-market exchanges; and thus, (3) ending Congress' eligibility for premium contributions that the government makes on behalf of federal workers with FEHBP coverage, which can reach up to $12,000.
Yet because Obama knew Congress would have quickly revamped or even repealed Obamacare if lawmakers had to live under the law themselves, his administration shielded members of Congress from that effective pay cut by granting Congress several types of special treatment that federal law plainly does not allow.
The Obama administration deemed Congress eligible to participate in Washington D.C.'s small-business exchange, for example, even though both federal and D.C. law explicitly and without exception prohibit large employers such as Congress from participating. Those illegal exemptions made Congress the only large employer in the country that can make tax-free contributions toward its employees' exchange-plan premiums. And by paying up to $12,000 toward the exchange-plan premiums of members and staff, the Obama administration made Congress the only group of federal workers that can receive FEHBP premium contributions for non-FEHBP coverage.
None of which is authorized anywhere in federal law. Indeed, federal officials initially ruled Congress is ineligible to participate in small-business exchanges or receive those subsidies—until Obama personally intervened and pressured them to reverse their ruling.
Federal officials betrayed the illegality of this scheme in late 2013 when they falsified Congress' application to participate in D.C.'s small-business exchange. The officials claimed and attested to numerous false statements, including the claim that Congress, which employs thousands of people, is a small business. After Freedom of Information Act requests made those falsified applications public, D.C.'s small-business exchange simply stopped asking employers about firm size. Further Freedom of Information Act requests have revealed that D.C. officials stopped asking employers to file applications at all after federal officials continued to falsify theirs, and that federal officials have since admitted to the D.C. exchange that Congress is in fact not a small business.
It is incontrovertible that federal officials made numerous false statements to a government agency for the purpose of using federal dollars to purchase items of value for members of Congress. Yet despite the apparent violation of a series of criminal laws and an apparent cover up, neither a Democratic administration nor a Republican Congress took any steps to investigate this obvious fraud.
Why? Because both sides benefited from the fraud.
By contrast, this fraud is frustrating Trump's agenda by making Congress less willing to revamp Obamacare. Trump can right this wrong by immediately ending Congress' special exemptions and illegal subsidies, and investigating whether the government officials who implemented them violated criminal laws. The surest way to make Congress overhaul Obamacare is to force lawmakers to experience first-hand the skyrocketing premiums and drastic pay cuts that the law is inflicting on ordinary people.
It's time to give Congress a taste of its own medicine.
John Malcolm (@malcolm_john) is vice president of the Institute for Constitutional Government and director of the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation, and a former deputy assistant attorney general in the Department of Justice's Criminal Division. Michael F. Cannon (@mfcannon) is director of health policy studies at the Cato Institute.
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