Saturday, June 3, 2017
WASHINGTON — Obama administration officials knew they were on shaky ground in spending billions of dollars on health insurance subsidies without clear authority. But they did not think a long-shot court challenge by House Republicans was cause for deep concern.
For one thing, they would be out of office by the time a final ruling in the case, filed in 2014, was handed down. They also believed that a preliminary finding against the administration would ultimately be tossed out. Finally, they figured that President Hillary Clinton could take care of the problem, if necessary.
Well, they are out of office, Mrs. Clinton is not president and the uncertain status of the cost-sharing payments now looms as the biggest threat to the stability of the insurance exchanges created under the Affordable Care Act. A dubious decision made by the previous White House has handed the current administration a powerful weapon to wield against the health care legislation that it despises.
“The administration should not have found an appropriation where none existed,” said Nicholas Bagley, a University of Michigan law professor who has studied and written about the issue. “The Obama administration argument that the Affordable Care Act included an appropriation for the cost-sharing payments never held water.”
Judge Rosemary M. Collyer agreed with that assertion last year. She ruled that the Obama administration had no explicit authority to pay as much as $130 billion over 10 years to insurance companies to cover out-of-pocket health costs for millions of lower-income Americans obtaining insurance on the new health exchanges. At the same time, she found that the Republican-led House had the standing to sue the administration — a potentially far-reaching decision that many constitutional law experts predicted would be overturned on appeal, causing the suit to be dismissed.
Then November’s election upended all the calculations. Donald J. Trump won, and his interest in defending the executive branch against the House lawsuit was nonexistent given his antipathy for the health care law.
But neither he nor congressional Republicans were in any hurry to drop the appeal initiated by the Obama administration because that would mean the subsidies would be immediately cut off, throwing the health insurance market into turmoil. Instead, the lawsuit has been essentially suspended and the payments have become a new bargaining chip in Washington. The administration is essentially doling them out on a month-to-month basis while Republicans struggle to come together on their own health care replacement plan.
Republicans say the fight over the subsidies is just one element contributing to a failure of the health care law.
“This law is in the middle of a collapse,” Speaker Paul D. Ryan told reporters before the House went on its Memorial Day break. “We need to bring down the cost of coverage, and we need to revitalize the market so that people have real choices and real access to affordable health care.”
Democrats and other critics say it is the Trump administration’s position on the cost-sharing payments that is a chief contributor to the shakiness in the market, with insurers abandoning the program or raising premiums in anticipation of the federal dollars disappearing. They say that the White House maneuvering on the subsidies is simply the latest in a series of calculated moves meant to sabotage the insurance program, starting with an order to end enforcement of the requirement that people obtain insurance.
While some Democrats acknowledge that the Obama administration left the law vulnerable to attack with the way it funded the subsidies, they say it is Republicans who will now pay politically if the program collapses on their watch.
“This would put their hands on the bloody knife,” said Senator Chris Van Hollen of Maryland, who is heading the Democratic Senatorial Campaign Committee.
Mr. Bagley, the law school professor, agrees that Republicans would be held accountable for a failure in the marketplace. He says they should be because of the actions they have taken to undermine it.
“The biggest source for the instability in the markets in 2018 is the president,” he said, warning of a run of damaging headlines for Republicans beginning this fall if things proceed on their current course.
Republicans dismiss such talk and say that the public knows just where the problems with the health care law originated — and it is not with them.
“The blame belongs with Obamacare,” Senator Mitch McConnell of Kentucky, the Republican leader, said recently. “There’s just no serious way to now try and spin away these years and years of Obamacare failures on cost.”
The ongoing debate overlooks an underlying problem with the Affordable Care Act. In the past, disputes such as the funding fight would have been resolved with corrective legislation.
Congress has traditionally taken years to resolve disagreements and unintended consequences arising from complex pieces of social legislation, as they continue to do with Medicare, which became law in the 1960s. But the bitter partisan divide over health care has prevented any such tweaking.
What to do about the payments will no doubt arise in budget talks between Capitol Hill and the White House.
The Trump administration could try again to extract concessions from Democrats by trading a commitment to continue funding the subsidies even though the White House was unsuccessful in doing so this year.
And if the Republican effort to find a substitute to the health care law ends in failure, which now seems a real possibility, perhaps Republicans and Democrats could find a way to come together to make repairs to the Affordable Care Act and resolve doubts surrounding the payments.
But for now, the uncertainty continues to imperil both the Affordable Care Act and the politicians who could be held accountable for any failure.