Late last week, President Donald Trump signed an executive order
directing the secretaries of the treasury and health and human services to
cease making payments to health care insurance companies in behalf of the more
than 6 million Americans who qualify for these payments under the Patient
Protection and Affordable Care Act, commonly known as Obamacare.
Obamacare is the signature
legislation of former President Barack Obama, enacted in 2010 and upheld by the
Supreme Court in 2012. Its stated goal was to use the engine of the federal
government to make health insurance available and affordable to everyone in
America.
It seeks to achieve that goal
by regulating the delivery of health care, giving federal bureaucrats access to
everyone’s medical records, compelling everyone in America to acquire health
insurance and providing financial subsidies for those people whose household
incomes are below certain levels and who do not otherwise qualify for Medicare
or Medicaid. Under President Obama, the subsidies were regularly paid, and they
had been paid under President Trump, as well, until he decided to cease paying
them last week.
How
is it up to the president to decide whether to spend federal dollars when the
law requires him to do so? The answer to that question depends on whether
Congress has authorized the specific expenditure of the tax dollars. Suicide Pact: The Radi...
Under the Constitution, when
Congress passes legislation that directs the president to spend federal tax
dollars — or, as is likelier the case today, dollars borrowed by the federal
government — Congress must appropriate funds for the expenditure. So for every
federal program that spends money, Congress must first create the program — for
example, building a bridge or paving an interstate highway — and then it must
pass a second bill that appropriates money from the federal treasury and makes
it available to the president for the purpose stated in the first law.
When Obamacare was drafted in
2009 and 2010, one of the many compromises that went into it was the gradual
rollout of its provisions; different parts of the law became effective at
different times. The law was enacted with all Democratic votes. No Republican
member of either house of Congress voted for it, and only a handful of
Democrats voted against it.
By the time the subsidy
provisions took effect, the Republicans were in control of Congress, yet Obama
was still in the White House. When Obama asked Congress to appropriate the
funds needed to make the subsidy payments required by the Obamacare statute,
Congress declined to do so. Thus, Obama — who, as the president of the United
States, was charged with enforcing all federal laws — was denied the means with
which to enforce the subsidy portion of his favorite legislation.
So he spent the money anyway.
He directed his secretaries of the treasury and health and human services to
take appropriated funds from unstated programs and to make the subsidy payments
to the seven largest health insurance carriers in the United States from those
funds. Of course, by doing so, he was depriving other federal programs,
authorized and funded by Congress, of the monies to which they were entitled.
But Obamacare was his legacy, and he was not about to let it die on the vine.
Can the president spend
federal dollars, whether from tax revenue or borrowing, without an express
authorization from Congress, even if he is following a law that requires the
expenditures? In a word, no.
That’s because the drafters
of the Constitution feared the very situation confronted by Congress and Obama
in 2013 — a law that is no longer popular, is no longer supported by Congress
and costs money to enforce, with a president eager to enforce it and a Congress
unwilling to authorize the payments. To address this tension between a
president wanting to spend federal dollars and a Congress declining to
authorize him to do so, the drafters of the Constitution put the power of the
purse unambiguously in the hands of Congress. The Constitution could not be
clearer: “No Money shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law.”
The Freedom Answer Boo... It
follows that where the appropriations have not been made by Congress, the funds
may not be spent by the president. When Obama declined to recognize this
constitutional truism, the House of Representatives sued the secretary of
health and human services in federal court, seeking to enjoin her from making
the subsidy payments, and the House won the case. The court underscored the
well-recognized dual scheme of the Framers whereby two laws are required for
all federal expenditures — one to tell the president on whom or on what the
money should be spent and the second to authorize the actual expenditure.
Without the second law — the express authorization — there can be no lawful
expenditure.
President Trump, after making the same unlawful expenditures for
nine months, decided last week to cease the practice. Whether he did so to bend
Congress to his will on health care or he did so out of fidelity to the
Constitution, he did the right thing, but he should have done it on his first
day in office.
Let’s not lose sight of the
whole picture here. President Obama has triumphed over President Trump and the
Republicans who control Congress, because all but a handful of those who are
faithful to the Constitution are behaving as if there were a constitutional
obligation on the part of the federal government to provide health insurance
for everyone in America. According to a plain reading of the Constitution — and
even as articulated by the Supreme Court in the case that upheld the constitutionality
of Obamacare — there isn’t.
Reprinted
with the author’s permission.
Andrew P. Napolitano [send
him mail], a former judge of the Superior Court of New Jersey, is
the senior judicial analyst at Fox News Channel. Judge Napolitano has written
nine books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential
Powers and the Lethal Threat to American Liberty. To find out more
about Judge Napolitano and to read features by other Creators Syndicate writers
and cartoonists, visit creators.com.
Copyright © 2017 Andrew P. Napolitano
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