$8.3 billion and counting. (For background, see here.)
The risk corridor program runs from 2014 through this year, and the balance for the 2016 plan year won’t be calculated until next fall. But the federal government has just released figures for 2015, and they’re eye-popping. Insurers are owed $5.9 billion (h/t Charles Gaba) on top of $2.4 billion that they’re still owed for 2014.
That means that the risk corridor lawsuits, taken together, are some of the largest ever brought against the United States. If 2016 looks the same as 2015, the government’s liability will swell to $14.2 billion, or about $43 for every man, woman, and child in the country.
But the lawsuits may not be long for this world. A handful of senators, including Marco Rubio, are sponsoring a bill with the inaccurate but hilarious title of the HHS Slush Fund Elimination Act. If it passes, the bill would sew up the Judgment Fund:
Notwithstanding section 1304 of title 31, United States Code, or any other provision of law … [with one exception], no Federal funds, including amounts appropriated under such section 1304, may be used to pay any final judgment, award, or compromise settlement relating to a covered provision (including interest and costs).
That’s not so different from the language that I floated some weeks back. (Rubio’s website claims that he “identified the bailout provision in the ObamaCare law and was the first in Congress to introduce legislation to stop it.” This is revisionist history: Rubio had little to do with the legislation, which originated in the House.)
If Congress eliminates the Judgment Fund as a source of payment, the federal government can’t settle these cases or pay any court judgments. That’s so even if the insurers are entitled to the money within the meaning of federal law. Although deprivation of an entitlement raises due process concerns, the remedy for any due process violation can’t lie with the courts, which have never claimed the power to instruct Congress to enact an appropriations statute. A remedy would have to come from Congress—and this Congress is unlikely to oblige.
Will the statute be adopted? I expect so. I’m not an expert on congressional procedure, but it looks to me that the Slush Fund Elimination Act affects government spending and could therefore be incorporated into a reconciliation bill. If that happens, Democrats couldn’t filibuster it.
So this is shaping up to be another installment in the long-running reality show called Elections Have Consequences. If Hillary Clinton had been elected, the insurers probably would have gotten paid. But she didn’t, and they likely won’t.
