Editor’s Note: This post was co-authored by Andrew Kloster, Legal Fellow at the Heritage Foundation.
Last week, The New York Times reported that many members of Congress were worried that, under the Patient Protection and Affordable Care Act (aka, Obamacare), they would lose their current, employer-sponsored health insurance coverage provided through the Federal Employees Health Benefits Program (FEHBP). Sen. Charles Grassley has led a valiant fight to ensure that if America got stuck with Obamacare, Congress would get stuck with it too. Yet as Politico reports, the President has been “personally involved” in developing an illegal exemption for Congress.
Just as Obamacare will have devastating consequences for all Americans, Section 1312(d)(3)(D) of the law “could mean an additional expense of $5,000 a year for [individual Congressional staffers] and $11,000 for families” who utilize the current FEHBP programs. This is because Obamacare specifically notes that “notwithstanding any other provision of law, all Members of Congress and congressional staff shall enroll in a Federal health insurance program…” created under Obamacare.
Some have even suggested a partial repeal of Obamacare so that Congress will not have to be on the same health plans as their constituents. However, if Congress seeks to repeal any part of Obamacare, it could encourage other, broader repeal efforts. Yet, based on the clear language of the statute, the only plans available for Members of Congress and their staff are the same Obamacare exchanges available to everyone else.
Politico reports that the Office of Personnel Management (OPM) will soon issue a ruling allowing continuing subsidies to Congressional health plans. Under the law itself, such a rule would be flatly illegal. First, the relevant law being clarified is not administered by OPM, but by the Secretary of Health and Human Services (HHS), and the only available health plans for Congress are those regulated by HHS. Second, proposed amendments to Obamacare to create a specific allowance for a Congressional health care subsidy were flatly rejected and, therefore, did not become part of the law as enacted.
Third, and most importantly, FEHBP is not simply a cash-grant for health care reimbursement. The authorizing statute, 5 U.S.C. § 8906, allows OPM to make payments only for “qualified plans…under this chapter,” as negotiated by OPM. OPM did not provide Congress with vouchers usable for any health care plan, but instead provided a specific list of OPM-approved and OPM-negotiated plans. The plans themselves were thus indistinguishable from the subsidy. Obamacare, however, explicitly repealed such a scheme by providing that “notwithstanding any other provision of law,” the only available plans are those envisioned by Obamacare which, as set forth above, are administered by HHS. Ultimately, if OPM continues to operate as before, it arguably will be violating Section 1312 of Obamacare by maintaining a competitor health care program, and if it starts giving out cash subsidies or vouchers that are usable for an Obamacare exchange, it arguably will be violating its own enabling statute.
By encouraging OPM to seek a regulatory fix to a legislative problem, the President has seemingly taken unilateral executive action. Senator Grassley had the novel idea that if Obamacare was good enough for the country, then it should be good enough for Congress; at the time, his colleagues seemed to agree (that is, of course, if they read the bill and knew what they were voting for). Yet Congress now thinks that Obamacare is not good enough for them, and rather than risk full repeal of the law, the President is unilaterally giving Congress an impermissible exemption.