• Screwing Congress

    There’s been a lot of talk about the executive actions that President Trump might take to reshape the Affordable Care Act. Here’s one I haven’t heard discussed: undoing the Hill fix.

    Prior to the ACA, members of Congress and their staffers got health coverage through their jobs, just like most Americans. But Congress wanted to signal that it believed in the new exchanges that the ACA created. The ACA therefore sent members and their staffers onto the exchanges. Specifically, the ACA says that “the only health plans that the Federal Government may make available to Members of Congress and congressional staff … shall be health plans that are … offered through an Exchange.”

    That left an open question. Could the federal government continue to pay for members’ and staffers’ health plans? Or would they have to pay for their plans out of their wages?

    The statute wasn’t entirely clear, so the Office of Personnel Management weighed in. It concluded that the ACA allowed the federal government, as an employer, to purchase exchange plans for members and staffers. That was good news for people who work on the Hill: zeroing out their health coverage would have amounted to an enormous pay cut.

    But the ACA’s opponents were incensed. Within months, Senator Johnson filed a high-profile lawsuit challenging the rule as unlawful. (It was later dismissed on standing grounds.) Senator Cruz wrote that “[t]he Obama Administration ignored clear federal statutes in erroneously deciding that the federal government would continue subsidizing congressional staff health insurance.” And the Wall Street Journal excoriated the Obama administration for its “illegal” action.

    As I explained at the time, the opponents’ legal arguments aren’t convincing. But I’ve also said that the ACA “is ambiguous on the precise question at hand.” That ambiguity gives Trump an opening. The Obama administration interpreted the ACA to favor members and staffers. Trump could re-interpret it to screw them.

    And boy oh boy would he screw them. In 2014, as Charles Gaba pointed out, some 12,359 members of Congress, staffers, and their dependents got coverage through the D.C. exchange. Those who earn too much to be eligible for subsidies—including the members themselves—will have to buy full-price coverage. For a silver plan in 2016, that’ll run a 55-year-old about $5,100 per year. Premium subsidies will help lower-income staffers, but they’ll still take a big pay cut and they don’t make much to begin with. We’d probably see a mass exodus of congressional staff.

    So what will Trump do? Since Republicans are convinced that the Hill fix was an illegal power grab, maybe he’ll do ‘em a solid and change the rule. They’ll need Trump’s help since they probably can’t undo the Hill fix through reconciliation. Sure, amending the rule would hurt. But, judging from their replacement plans, Republicans think it’s good politics to take health insurance from people. Maybe members and staffers will thank Trump!

    It’s much more likely, however, that they’d resent the pay cut, just like anyone would. That’s why I don’t see Trump picking this particular fight. The vitriol around the legality of the Hill fix—and around Obama implementation in general—has been more about partisan politics than about the law. Now that the president is on Congress’s side, I expect Republicans will conveniently forget about this ostensibly illegal rule that wasn’t illegal in the first place.

    Which is fine by me. But it’s worth noticing that, in the debate over ACA implementation, legal arguments became a continuation of politics by other means (to borrow from Clausewitz). We’re sure to see the same sort of thing from Democrats once Trump is sworn in. In the zero-sum war that characterizes American politics today, both parties will take every advantage they can.

    But weaponizing the law is dangerous. Law isn’t just an extension of politics. Some legal questions have answers, and those answers shouldn’t change with shifting political winds. If they do, what special claim can law make to constrain executive behavior?

    I digress, however. Mr. Trump, the Hill fix was never illegal. But the ACA gives you the flexibility to undo it. You’ll be president in ten days. Your move.

    @nicholas_bagley

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