Heritage Foundation: WH 'Flouting the Law' with Obamacare Subsidies for Congress

Politico reported that the Office of Personnel Management (OPM) will issue a ruling next week that will allow the federal government to subsidize the insurance plans Congressmen and their aides will be forced to buy on government healthcare exchanges due to Obamacare. 

The news came just hours after the Heritage Foundation released an embargoed study to reporters that found there was no legal way for the administration to offer subsidies for Members of Congress and their aides without passing a legislative "fix."

The Obama administration may have tried to preempt the release of that study; one of the study's co-authors insisted to Breitbart News on Friday that no matter how creative the Obama administration gets, there does not seem to be a legal manner in which the federal government can grant the Obamacare subsidies. 

Ed Haislmaier and Robert E. Moffitt, both of whom are Senior Research Fellows in the Center for Health Policy Studies at The Heritage Foundation, and Joseph A. Morris, an attorney in private practice who served as General Counsel of the U.S. Office of Personnel Management from 1981 to 1985, co-authored the study, titled, "Congress in the Obamacare Trap: No Easy Escape."

Haislmaier emphasized to Breitbart News that "we don't see a legal avenue, no matter how creative, for them."

"We don't know what they will come out with, or how they will try to to justify it," he told Breitbart News. "If they do produce, then we will have a regulation to dissect."

As the Heritage Foundation's Rob Bluey wrote on "The Foundry," it is indeed curious that "word of the Obama Administration 'solving' Congress’ problem was suddenly leaked to a couple reporters at 9 p.m. — just hours before the release of Heritage’s report (embargoed copies of which had been given to the media)."

The Administration’s strategy appears to be one of deliberately flouting the law, in the belief that it can get away with it because Congress will be the beneficiary and the American public won’t catch on to what they are doing. If the Administration really thinks it has a legal way under Obamacare for the federal government to continuing paying for the health care of members of Congress and their staff, why didn’t they issue the regulations at any point over the last three years?

As the Heritage study noted, just ten days after Obamacare passed, the Congressional Research Service issued a memo detailing the problems with the provision.

"Members of Congress and their staffs are facing the same problems that confront millions of employers and employees—their fellow citizens—throughout America," the study declares. "They will be unable to keep the health coverage they have today, and will instead be consigned to the government health exchanges, whether they like it or not.

The authors note that though "Congress could enact legislative changes," the problem for Congress is that "adopting any possible legislative solution would now be viewed by many of their constituents as an act of self-dealing special treatment," something that would be "risky in the extreme."

The study examined Obamacare's legislative history, which found that "Congress had numerous opportunities" as the Affordable Care Act "made its way through the legislative process to ensure the continuation" of the current model where the federal government subsidizes the insurance premiums of Members and staff "and to treat committee and leadership staffs the same as Member office staffs."

The authors noted:

Yet, Congress, with support from the President, enacted a piece of legislation that rather starkly requires Members and staff to either pay for their own health insurance out of their after-tax incomes, obtain coverage under a spouse’s plan, or purchase coverage in the new exchanges (subsidized for those with family incomes that qualify).

This was acknowledging that individuals and families will pay around $5,000 and $11,000 more, respectively, by purchasing unsubsidized insurance from the government healthcare exchanges.

The authors cite Robert Pear of the New York Times, who asked, “If they did not know exactly what they were doing to themselves, did lawmakers who wrote and passed the bill fully grasp the details of how it would influence the lives of other Americans?”

The study determined that Congress can only "keep its current health coverage by repealing Section 1312(d)(3)(D)" of the law, but the "political price for doing so is that Members of Congress must repeal the rest of Obamacare as well—so that their constituents can keep their health plans, too."

The study revealed that nowhere in the law is OPM given the authority to pay "the government contribution to a plan that is not one of the plans contracted for by OPM." And, per Section 1312(d)(3)(D) of Obamacare, as of January 1, 2014, "the only health insurance plans that Members of Congress and their staffs can be offered are health insurance plans 'offered through an Exchange established under this Act.'"

Furthermore, the study also found the law does not have a provision "which codifies the statutes governing federal contracting and procurement—that supersedes the grants and limitations of OPM’s contracting authority" regarding the subsidization of insurance premiums.

"There does not seem to be any way that OPM can rescue Members of Congress and their staffs," the study concluded. 


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