This afternoon Judge Rosemary Collyer dropped another mess into the Obama administration’s continuing Obamacare quagmire. Her ruling in House of Representatives v. Burwell jeopardizes a major source of funding for health-insurance marketplaces, which were already barely sustainable at best. Perhaps more important, however, it represents a major defeat for the administration’s constant pattern of executive unilateralism by preserving the House’s most important constitutional prerogative, the power of the purse.
The case centers around Obamacare’s cost-sharing subsidies, which provide additional assistance to help low-income individuals pay for things like co-payments and deductibles. While the Obamacare law explicitly appropriated funds to subsidize premiums on insurance exchanges, it did not provide such an appropriation for these cost-sharing subsidies. The Obama administration acknowledged this in 2013, requesting such an appropriation from the House of Representatives. But months later, the administration did an about-face and proceeded to start paying cost-sharing subsidies to insurers. The House viewed this action as a unilateral usurpation of its most important constitutional prerogative — to fund, or refuse to fund, government programs.
Today Judge Collyer unequivocally agreed:
Paying out [cost-sharing subsidies] without an appropriation thus violates the Constitution. Congress authorized reduced cost sharing [in Obamacare] but did not appropriate monies for it, in the [Fiscal Year] 2014 budget or since. Congress is the only source for such an appropriation, and no public money can be spent without one.
In so deciding, Judge Collyer rejected what she called the “extra-textual arguments” put forth by the administration, which claimed that an appropriation in Obamacare for premium subsidies meant that Congress had also appropriated funds for cost-sharing subsidies. In her view, the law creates two separate and distinct programs. An appropriation for cost-sharing subsidies doesn’t exist in Obamacare and hasn’t been included in any other subsequent legislation, and therefore the House has every right to obtain injunctive relief from any further cost-sharing subsidies’ being paid — unless or until Congress enacts such a specific appropriation.
Insurers will take little solace in the fact that Judge Collyer stayed her injunction pending an expected appeal from the administration. At a time when insurance marketplaces already face sustainability issues, her ruling creates another major element of uncertainty. For them, the timing couldn’t be worse, coming one day after the deadline to submit 2017 bids for Healthcare.gov offerings. If Judge Collyer’s ruling is upheld on appeal, the policy landscape facing insurers could prove far different than they envisioned when submitting their plans for next year.
#related#But the bigger winner in this case is the Constitution. In attempting to defend the money it was shoveling toward insurers, the administration took positions both dangerous and absurd. In its briefs, the administration’s attorneys argued that because the House did not pass legislation explicitly defunding the cost-sharing subsidies, the administration was permitted to fund them — a contention that would turn the Constitution on its head. Judge Collyer rightly rejected this brazen attempt by the executive to arrogate the spending power to itself.
No doubt the D.C. Court of Appeals, and perhaps the Supreme Court, will weigh in on the topics addressed by House v. Burwell in due course. But while Judge Collyer’s ruling inflicts another defeat on an already wobbly Obamacare regime, it more importantly represents a victory for the separation of powers and the rule of law. That’s an outcome all conservatives can cheer.
— Chris Jacobs is the founder and CEO of Juniper Research Group, a policy-consulting firm based in Washington.