(The Federalist) A president requests billions of dollars to fulfill his main campaign promise. Congress turns him down, but the president finds a way to go around them and get his money anyway.
Donald Trump and his border emergency? Sure. But this description also applies to Barack Obama’s treatment of Obamacare. Examined from this context, the health care history raises questions about whether liberals’ outrage over Trump’s emergency declaration stems from his extralegal actions—or their underlying opposition to his border policies.
Consider the following: The health care bill signed into law in March 2010 authorized the Department of Health and Human Services to send cost-sharing reduction payments to insurers, for reducing co-payments and deductibles for certain low-income individuals. But the law never appropriated a single dollar for those cost-sharing payments.
The Obama administration knew full well it lacked a lawful appropriation for the insurer payments. In 2013, it requested billions of dollars from Congress for such spending. But Congress refused to appropriate the money. Republicans, who by then controlled the House of Representatives, had no interest in giving dollars to prop up Obamacare, and even Democratic appropriators seemingly had other priorities to fund rather than insurer payments.
Facing a refusal from Congress to appropriate the cost-sharing subsidies, the Obama administration went ahead and spent the funds anyway. Administration officials concocted a theory that even though an express appropriation for the payments did not exist in law, the health care law implied an appropriation of funds. They paid the cost-sharing subsidies to insurers in conjunction with Obamacare’s premium subsidies, even though the two programs are authorized in different sections of the law, and should operate via two different cabinet departments.
Granted, the Obama administration used much more surreptitious means to accomplish its unconstitutional ends. Unlike Trump, who announced his emergency declaration to much fanfare, his predecessor did not draw attention to his extralegal maneuvering. It took House Republicans seven months to authorize a suit objecting to Obama’s actions. But the only two federal courts to rule on the matter found that the law did not include an appropriation for the cost-sharing payments, meaning that Obama violated the Constitution’s appropriations clause by spending funds without authorization.
What did Speaker of the House Nancy Pelosi (D-CA), who on Friday said Trump’s move violated Congress’ power of the purse, say when Obama violated that same constitutional prerogative? She endorsed it, on both questions of law and of policy.
In two separate legal briefs, the then-House minority leader claimed Obamacare did appropriate funds for the cost-sharing payments to insurers—a claim that federal courts rejected. But her briefs went even further, claiming that Congress had no standing to object to the executive’s encroachment on its spending power.
Pelosi’s briefs in the Obamacare case present numerous objections to Congress’ suit against the executive. She claimed that “allowing suit in this case undermines, rather than advances, [the House’s institutional] interests,” and would “subject Congress to judicial second-guessing” and allow for “legislative obstruction.” She argued that the House of Representatives had no standing to pursue claims against the executive on its own, without the Senate’s concurrence. And she pointed out that “Congress has numerous tools at its disposal to resolve routine disputes,” for instance “corrective legislation that…prohibits the disputed executive action.”
Pelosi claimed last week that Republicans’ decision to endorse Trump’s emergency declaration will set a precedent they will come to regret. She knows of which she speaks. While researching the issue in recent months, I found that Pelosi’s briefs from the Obamacare case mysteriously disappeared from her website (although thankfully are still archived online.) Quite possibly, Pelosi’s staff decided to remove the briefs from her website upon retaking the majority, because they recognize the inconvenient precedent they set—and which Pelosi will now have to explain away in both the legal and political realms.
The day before the 2016 presidential election, I wrote that Pelosi’s position in the Obamacare suit effectively endorsed a “power grab” by a future president like Trump. I outlined a “totally hypothetical example” whereby an executive decides to fund a “big, beautiful wall—a yuuuuge wall, even—without Congress’ consent”:
Call this a hunch, but I doubt that…the Democratic lawmakers would content themselves with the remedies they have laid forth in their brief about Obamacare’s cost-sharing subsidies. Faced with a President spending billions of dollars on a deportation force never appropriated by Congress, would Nancy Pelosi merely content herself with conducting hearings and ‘appeal[ing] to the public,’ as her brief argues in the Obamacare context? Hardly.
That November 2016 article proved prescient in highlighting the dangers of situational ethics—politicians putting immediate policy wins ahead of larger constitutional principles. More than two years later, Pelosi may soon reap the whirlwind, when Trump’s Justice Department uses her Obamacare briefs to argue that the House of Representatives has no standing to challenge his emergency declaration.
Congressional Republicans should learn from Pelosi’s example, stand fast to their principles, and call Trump’s action for what it is: A usurpation of Congress’ power of the purse, a breach of the separation of powers, and a violation of the principles of limited government that conservatives hold dear.
Mr. Jacobs is founder and CEO of Juniper Research Group, a policy consulting firm based in Washington. He is on Twitter: @chrisjacobsHC.
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