Trump legally correct to cease payments to insurers

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 on 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.

The goal of the signature legislation of former President Barack Obama — enacted in 2010 and upheld by the Supreme Court in 2012 — was to use the engine of the federal government to make health insurance available and affordable to everyone in America.

It achieves that goal by regulating the delivery of health care and providing financial subsidies for people whose household incomes are below certain levels and do not 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.

Under the Constitution, when Congress passes legislation that directs the president to spend federal tax dollars, Congress must appropriate funds for the expenditure.

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.

By the time the subsidy provisions took effect and 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, 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.

Drafters of the Constitution feared the very situation confronted by Congress and Obama in 2013. So, they put the power of the purse unambiguously in the hands of Congress.

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 and won. 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. He did the right thing.

Let’s not lose sight of the whole picture here. Obama has triumphed over 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.