It has become fashionable since President Trump was elected for liberals and major media types to lament the lawless expansion of executive powers, to champion constitutional restraints, and to worry about populism. What isn’t new, and has indeed been around for a century or more, is the Left’s claim to be the enemy of the big business and corporate agendas.
If these pretentions were even slightly true or sincere, Democrats and CNN would have cheered President Trump’s actions Friday, in which he ruled, in accordance with every law court and all common sense, that the Department of Health and Human Services may not dole out subsidies to insurance companies that Congress has not first appropriated.
That’s the substance of the administration’s ruling on cost-sharing reduction, or CSR, subsidies. CSRs are one of many subsidies created by Obama to prop up the healthcare reform that bears his name. These are not premium subsidies for less-well-off insurance customers. Nor are they the direct insurance company bailouts that Marco Rubio targeted last year, known as the “risk corridor” program.
Related: Trump’s radical Obamacare move: Following the Constitution
CSRs are subsidies paid directly to insurance companies that reduce copays and deductibles for poorer customers when they actually use their insurance. The Affordable Care Act authorized CSR payments, but Congress in 2015 did not appropriate any money for them.
The Constitution clearly gives the power of the purse to Congress, but Obama treated Obamacare as the supreme law of the land, trumping the Constitution. His administration treated its own interpretation of Obamacare as supreme. So when it agreed to pay insurance companies without congressional leave to do so, the president and his acolytes treated this as inviolable.
Congressional Republicans sued to prevent this. They won their case at the district level, where Judge Rosemary Collyer criticized the Obama administration’s legal arguments as “curious and convoluted.” That lawsuit was then put on hold in December at the request of the congressional plaintiffs, who expected the new Trump administration to handle matters for itself.
This is what is now taking place. While Washingtonians were engrossed Thursday night in a slugfest between their beloved Nationals baseball team and the Chicago Cubs, Trump announced that the executive will stop illegally spending unappropriated money on these subsidies. This is his only option. If he wants the subsidies to be paid, he needs Congress to appropriate money for them. And if he doesn’t, then that’s convenient, because it’s what current law dictates, absent an appropriation. This is what the rule of law looks like.
There’s a legitimate debate over what to do with Obamacare: keep it, fix it, replace it, repair it, repeal it, pay out CSR subsidies, don’t pay them out. The elected branches of government will have to decide what is possible and what is necessary.
Whatever Congress does, it must start with the principle that the Constitution trumps the whims of whoever happens to be president on a given day. There were 43 presidents before Obama and they lived by this rule. Only Congress can appropriate money. As we learned during the Iran-Contra scandal, executive officers cannot just spend money as they please without Congress’s permission — even if that money does not come directly from the taxpayer. Trump acted properly in renouncing Obama’s false claim to a new executive power of the purse.
We don’t delude ourselves that Trump will be consistent in the proper and modest exercise of presidential power — his talk of shutting down news organizations he doesn’t like comes to mind — but we do believe and hope that if he strays from this modesty, the courts will be just as quick to slap his wrist for it as they were to slap Obama’s.
