Last week, one of Washington’s leading Democrats made what should be considered a stunning admission, yet few in the media bothered to notice, or care. In response to comments from Senate Majority Leader Mitch McConnell (R-KY) about a potential bailout of Obamacare insurers, Minority Leader Chuck Schumer (D-NY) said: “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.”
Schumer’s statement contradicts the Obama administration, which argued in federal court that the cost-sharing reductions are already permanent. It’s also an implicit admission that the Obama administration violated both the U.S. Constitution and federal criminal statutes by spending funds without an appropriation.
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 Admits Constitutional Violation
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.
By conceding that Obamacare lacks a permanent appropriation for cost-sharing reductions, Schumer’s admission raises some interesting questions. The Obama administration requested an explicit appropriation for the cost-sharing reduction payments, a request Congress promptly denied. If there isn’t a permanent appropriation for cost-sharing payments in Obamacare—as Schumer admitted—then the Obama administration spent money without an appropriation.
The Anti-Deficiency Act includes not just civil, but criminal, penalties: “An officer or employee of the United States Government or of the District of Columbia government knowingly and willfully violating [the Act] shall be fined not more than $5,000, imprisoned for not more than 2 years, or both.”
By calling on Congress to “ensure” permanent cost-sharing reductions, Schumer has essentially admitted that President Obama violated the Constitution, and members of his administration may have violated federal criminal statutes by spending money without an appropriation. This prompts one other obvious question: When will Schumer endorse a special counsel to investigate these matters?
Don’t Endorse Law-Breaking
In deciding to pay the cost-sharing subsidies without an appropriation, the Obama administration and its allies have endorsed a strategy of ends justifying means: They wanted to provide health insurance to more Americans, therefore it was acceptable to violate the Constitution. And if the administration violated the Constitution long enough, and on a big enough scale, they could change the law to meet their will. Now that a federal court has ruled that President Obama did in fact violate the Constitution, that’s exactly what Pelosi and Schumer want to do: Change the law to accommodate the Obama administration’s law-breaking.
Only after those weighty issues have been examined and adjudicated fully should Congress debate whether to appropriate funds for the cost-sharing reductions. To do otherwise would undermine the Constitution that members of Congress vowed to uphold, and further encourage the kind of flagrant law-breaking seen in the Obama administration.
This post was originally published at The Federalist.