Republicans have a responsibility to take on Barack Obama if he illegally bails out health insurance companies

There could be a legal complication for health insurance companies relying on a bailout from the Obama administration in the (likely) event that they lose money because of Obamacare. Peter Suderman recently explained that Congress hasn’t appropriated any money to pay for this bailout:

Last month, buried in a 435-page regulatory filing from the Centers for Medicaid and Medicaid Services (CMS), the Obama administration attempted to reassure the health insurance industry that, if necessary, federal officials would find money to make payments for Obamacare’s “risk corridors”—the temporary shared-risk financing system built into the health law that has been dubbed a bailout of the health insurance industry.

The regulatory filing reiterated the administration’s position that the program would likely be revenue neutral. But in the event that it’s not, it seemed designed to suggest that insurers shouldn’t worry.
The complication comes from the final phrase: “subject to the availability of appropriations.”

That could be a problem. Because according to a January memo from the Congressional Research Service (CRS), there do not appear to be appropriations available to make the payments. Although the health law does direct the Secretary of Health and Human Services to make risk corridor payments, the CRS memo explains that the legislation “does not specify a source from which those payments are to be made.”

That’s a problem. According to the Government Accountability Office (GAO), it’s not enough for a statute merely to direct payment. It also must designate which funds are to be used. Both elements must be present in order for a payment to be lawful.

The administration can’t spend a cent unless Congress appropriates it. This is part of that “separation of powers” thing in the Constitution for which President Barack and his administration have so much contempt.

Sure, the White House Obama requested $5.5 billion for the bailout in his FY 2015 budget, but that proposal was dead-on-arrival on Capitol Hill. Congress had already passed a budget, the two-year Ryan-Murray deal, and its currently working on appropriations for FY 2015.

If Congress doesn’t appropriate money for the risk corridors program, any transfer of funds by the administration to bailout health insurers would be illegal. Rep. Fred Upton (R-MI) and Sen. Jeff Sessions (R-AL) want answers from the administration about how it intends to pay for the bailout, as Suderman notes.

Unfortunately, President Obama has, far too often, played fast and loose with his powers, making law through executive orders and changes to Obamacare through regulatory fiat. This White House knows that Republicans won’t hold him accountable for putting taxpayers at risk, though they should. But the crony Obamacare bailout won’t be any different.

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