How the White House is weaseling Congress out of ObamacCare.
The
White House on Wednesday released the legal details behind its
ObamaCare bailout for Members of Congress and their staffs, and if
anything this rescue is worse than last week's leaks suggested: Illegal
dispensations for the ruling class, different rules for the hoi polloi.
Thanks
to an amendment from Iowa Senator Chuck Grassley that Democrats enacted
in 2010, the Affordable Care Act says that "the only health plans that
the Federal Government may make available" to Congress are the ones
offered on the ObamaCare insurance exchanges. But Members and many aides
have been flipping out because they won't qualify for ObamaCare
subsidies and they'll lose employer contributions they now receive under
the Federal Employees Health Benefits Program, or FEHBP, which picks up
about three-quarters of the average premium.
At
President Obama's personal request, the Office of Personnel Management
decreed that the Members don't have to get off the gravy train after
all. The eat-your-own-cooking provision begins with the phrase
"Notwithstanding any other provision of law." The feds now interpret
that clause as a loophole to mean that the Affordable Care Act did not
change the 1959 law that created the FEHBP.
Since
Members and staff still technically meet the definition of federal
employees qualified for the FEHBP, the Administration says they're still
entitled to enroll in the FEHBP concurrently with the
exchanges. The feds then "clarify"—their euphemism—that the regulatory
meaning of health benefits in the FEHBP can be ObamaCare plans. Voila,
taxpayers will continue to chip in $4,900 for individual and $10,000 for
family coverage.
President Barack Obama
The
charitable term for such legal gymnastics is creative. When statutes
conflict, the bedrock administrative law obligation is to enforce the
most recent statute. "Notwithstanding" clauses are routine catchalls
that are supposed to emphasize Congress's intent that a new bill is
controlling and pre-empts other laws on the books.
The
White House is claiming the clause means the opposite, as if the 2010
law and the 1959 law have nothing to do with each other. That is not how
it is supposed to work. When Congress kicked itself out of the
traditional FEHBP, it kicked itself out of the FEHBP.
At
least the Members will still have to sign up for exchange coverage as
the law requires. Given the lawless White House record, it probably
considered finding some excuse to exempt Congress entirely and decided
that option was too explosive politically. But creating a special
financing stream for the political class is almost as much of an abuse.
ObamaCare's
complex subsidy system, with varying levels based on income, is not
incidental to the exchanges. It's the beating heart of this exercise in
wealth redistribution and social and economic central planning. The
entitlement's architects never envisioned that well-to-do movers and
shakers—Mr. Obama might even call some of them "the rich"—would get (or
deserve) taxpayer benefits merely because they happen to run for or work
for Congress.
Millionaire
Senators and the affluent professionals who are chiefs of staff,
legislative directors and the like were supposed to go on the exchange
and abide by its rules. There are only three insurers offering public
utility-type plans on the Washington, D.C. ObamaCare exchange. The FEHBP
sponsors 21 plans in metro D.C. and 24 in Virginia. Perhaps as a new
perquisite the White House will entice a plan to the exchange that only
Members can choose.
It
would have been fairer and less corrosive to the rule of law had
Congress simply passed a bill giving their workers a raise to make up
for the lost compensation of dropping out of the FEHBP. But that would
mean an ugly political fight that voters might notice. It's so much
easier to slip through this political fix in August when Congress is out
of session and the press corps can't wait to hit the beach.
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