Cost Sharing Reductions and the Constitution

October 21, 2017
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Republican Representatives who sued the Obama administration, Judge Rosemarry Collyer who decided they were right, Donald Trump and lawyers representing the Trump administration argue that the Department of Health and Human Services (HHS) can not compensate insurance companies for the expence of cost sharing reductions (CSRs) for people with income under 250% of the poverty line who purchase silver plans on ACA exchanges. The argument is that compensation for CSRs might be good policy, but the Constitution makes it clear that only Congress can choose such good policy.

I’m not an lawyer but I do not understand how anyone can make such an argument. Following Mark Joseph Stern, I quote from the ACA

(3) Methods for reducing cost-sharing
(A) In general
An issuer of a qualified health plan making reductions under this subsection shall notify the Secretary of such reductions and the Secretary shall make periodic and timely payments to the issuer equal to the value of the reductions.

(3) Payment
The Secretary shall pay to the issuer of a qualified health plan the amount necessary to reflect the increase in actuarial value of the plan required by reason of this subsection.

Tnat seems very clear to me. The whole case seems to rest on the fact that the ACA never says funds are appropriated for this purpose. My (non lawyer’s) understanding of precedent is that the Constitutional requirement that funds be disbursed only as appropriated by law by Congress has not been interpreted as requiring the approriate use of the appropriate “appropriated”.

Just to cut and paste a bit from Stern

When Congress passed the ACA, after all, it instructed HHS to make these payments. And in doing so, it effectively appropriated the necessary funds. As Georgetown University law professor David Super explained to my colleague Jordan Weissmann in 2015: “The Supreme Court has been very clear that you do not have to have a law that says ‘appropriations’ across the top. You just need a law directing that the money be spent.”

I don’t see an arguable case against paying the money.

Certainly, I don’t see how anyone can argue that the payments are not allowed and required without addressing the bits of the law which I cut and pasted.

It seems to me that to pretend they don’t exist is to lie by omission, and that lying to a judge is contempt of court, even if one isn’t under oath.

Lawyers help me. I sure wouldn’t want Trump administration lawyers to be disbarred.

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