Fewer than 12 months ago, some people—aka, yours truly—raised a warning about Obamacare’s cost-sharing reductions. The text of the law nowhere provided an appropriation for them, meaning that, as I wrote last May, the next President could shut them off unilaterally. At the time, I contacted several reporters, pointing out that such a move could have major implications for the health care law. None showed any interest in writing on the topic, and to the best of my knowledge, few if any reporters did.
Having now under-reacted regarding the issue during most of 2016, the media are compensating by over-reacting now. Since the House failed to pass “repeal-and-replace” legislation, breathless articles in multiple publications have examined the issue, whether the Trump Administration will cut off the subsidies, and whether insurers will bail on the Exchanges en masse as a result.
There’s just one little detail about the issue that many of these articles are missing. You may have heard of it: it’s called the United States Constitution.
What Exactly Is Going On With Obamacare Subsidies?
For the uninitiated, the dispute involves one of two types of Obamacare subsidies: premium subsidies to lower monthly premium costs, and cost-sharing reductions that help with things like deductibles and co-payments. The law requires insurers to reduce cost-sharing for certain low-income individuals, and provides for a system of reimbursements to repay insurers for providing said reductions.
However, Obamacare itself failed to provide any appropriation for the reimbursement payers to insurers. The lack of an explicit appropriation violates Article I, Section 9 of the Constitution, which requires that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Congress has the “power of the purse,” and Members of Congress believe that the Obama Administration violated that power.
To remedy that violation, the House of Representatives authorized legal action in July 2014, and filed suit in November 2014 seeking to stop the subsidies. Last May, Judge Rosemary Collyer ruled that the Obama Administration had in fact violated the Constitution by spending money without an express appropriation. The case, House v. Price (formerly House v. Burwell), remains on hold; the Obama Administration appealed Judge Collyer’s ruling last year, and the Trump Administration and the House are attempting to resolve the status of that appeal.
Over Obamacare’s first four fiscal years, the disputed payments to insurers would total approximately $20.9 billion—$2.1 billion in fiscal year 2014, $5.1 billion in fiscal year 2015, $6.1 billion in fiscal year 2016, and an estimated $7.6 billion if they continue through fiscal year 2017 (which ends September 30). Over the next 10 years, the Congressional Budget Office estimates that the payments will total $135 billion.
What’s The Media Saying About All This?
Given that background, it’s worth examining press coverage on the issue since Republicans’ “repeal-and-replace” efforts collapsed, bringing questions about the lawsuit, and the subsidy payments, to the fore:
- Politico noted that the House’s suit argued that the Obama Administration “had paid for [the subsidies] without congressional authority”—but also quoted an expert as saying failure to appropriate funds for the subsidies would “shoot [Obamacare] in the head.”
- A separate Politico opinion piece said that “if the Republicans want to avoid a major mess, they need to make the suit go away and make sure the subsidies keep flowing.”
- A Wall Street Journal article said that the House calls the payments “illegal.”
All three of these stories omitted one simple word: “Constitution.” As in, a federal judge said Barack Obama’s Administration violated the Constitution. As in, one analyst thinks the House needs to make a suit protecting its constitutional authority “go away.” As in, the payments weren’t ruled “illegal”—they were ruled unconstitutional.
Granted, other stories have at least mentioned the constitutional element of the dispute. But there haven’t been many stories focusing on the constitutionality of President Obama’s actions (which even Obamacare supporters have questioned), or even how the court ruling could rein in executive unilateralism. Instead of reading about how—by spending money without an appropriation—Barack Obama “sabotaged” the Constitution, or even “shot it in the head,” the public has seen all sorts of articles suggesting that President Trump may “sabotage” Obamacare—by upholding the Constitution.
Thanks For The Double Standard, American Media
Remember: The cost-sharing subsidies involve an issue where a federal judge has already ruled that the Obama Administration violated the Constitution by giving insurers tens of billions of dollars without an appropriation—yet the press seems more focused on whether or not those payments will continue.
That response merits a thought experiment in word substitution: If a federal court had ruled that the George W. Bush Administration violated the Constitution by giving tens of billions of dollars to—let’s pick a company at random here—Halliburton, do you think the press would be more focused on the violation of the rule of law and the unconstitutional payments, or on the chaos that would result if those payments to Halliburton suddenly ceased? If you think the latter, I’ve got some land I want to sell you.
If you’re still unconvinced that reporters are in the tank for Obamacare—or at minimum guilty of significant, and quite selective, double standards when it comes to their constitutional outrage—consider this recent Politico piece about a Donald Trump tweet threatening to change libel laws:
Trump’s comments on libel, coupled with his regular attacks on reporters and news organizations, have alarmed First Amendment advocates and his critics, who warned over the course of the campaign that his posture toward news organizations revealed a lack of respect for the role a free press plays in a democracy.
This high-minded rhetoric came one paragraph after Politico, citing various legal experts, pointed out “that there are virtually no steps within the President’s power to ‘open up libel laws,’ as Trump has suggested.”
When President Trump makes an empty threat against the press—one that he has no power to follow through on—the media piles on with all manner of self-righteous indignation about the integrity of the First Amendment and undermining democracy.
But when a federal judge rules that President Obama violated (not threatened to violate, mind you, but actually violated) the Constitution by paying insurers tens of billions of dollars, the media focuses largely on how remedying that violation will impact the health care law. They seem to care more about protecting Obamacare than protecting the Constitution. Is it any wonder why people boo the press?
Spare Me Your Self-Righteousness
Within that double standard lies the major problem: the presumption that Obamacare is “too big to fail,” irrespective of whether or not the Obama Administration’s payments to insurers violated the Constitution. Some could be forgiven for thinking that the press coverage provides a disturbing lesson to future Presidents: If you violate the Constitution long enough and badly enough, it will become a norm, such that people will expect future leaders to accommodate the violation.
To all those reporters worried about President Trump’s attacks on reporters, I’ll simply posit that the Constitution is a binary choice: You either support it—all of it, even or especially the portions you find inconvenient—or you don’t. If you want the public to care about the Trump Administration’s stance towards the First Amendment, then it might be wise to give a damn about the other portions of the Constitution too.
This post was originally published at The Federalist.