Regardless of what the Supreme Court has stated, Obamacare is unlawful on almost every level. It surpasses Congress’s counted controls, it ridicules the Commerce Clause, it disrupts the religious liberty of citizens and conscience rights, and the former administration health bills applied it opposing to the law’s own text whenever it was suitable.
At the Federalist, Christopher Jacobs notices that Senate Minority Leader Chuck Schumer’s recent statement to Mitch McConnell posturing about “working together” to “fix” Obamacare (ugh) contains one passage that has more implications than Schumer probably had in mind:
Democrats are eager to work with Republicans to stabilize the markets and improve [Obamacare]. At the top of the list should be ensuring cost-sharing payments are permanent, which will protect health care for millions.
At first glance, that looks innocuous enough (well, as innocuous as anything a Democrat says can be, at least). However, Schumer’s admission that the cost-sharing payments are not currently permanent, and need to be made so by new legislation, is a departure from the rhetoric of previous Democrat leaders — and it matters a great deal to the legal legitimacy of (this part of) Obamacare.
Section 1302 of Obamacare requires health insurers to reduce cost-sharing (i.e., deductibles, co-payments, etc.) for certain low-income enrollees who buy silver plans on health insurance exchanges. The law directs the secretary of Health and Human Services (HHS) to create a program to reimburse insurers for the cost of providing those cost-sharing discounts. But the text of the law does not actually disburse funds to HHS—or any other cabinet department—to make the reimbursement payments to insurers.
Not wanting to be bound by such niceties as the rule of law, the Obama administration started making the payments to insurers anyway, claiming the “text and structure” of Obamacare allowed them to do so. The House of Representatives sued, claiming a violation of its constitutional “power of the purse,” and last May, Judge Rosemary Collyer agreed, ruling that the administration violated the Constitution […]
Schumer’s statement last Thursday stands out because the Obama administration and House Minority Leader Nancy Pelosi (D-CA) have claimed, both in court and elsewhere, that Obamacare made a permanent appropriation for the cost-sharing payments. The law did no such thing, and a federal district court judge so ruled, but they attempted to argue that it did.
In other words, by “conceding that Obamacare lacks a permanent appropriation for cost-sharing reductions,” Schumer has implicitly approved that the payments the administration did make were made without Congressional authorization. And the Constitution — Article I, Section 9, Clause 7, to be exact, openly states that “No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”
There are no “unless the president really, really want to” exceptions.