The following is presented as part of The Columbian’s Opinion content, which offers a point of view in order to provoke thought and debate of civic issues. Opinions represent the viewpoint of the author. Unsigned editorials represent the consensus opinion of The Columbian’s editorial board, which operates independently of the news department.
When John Adams wrote into Massachusetts’ Constitution a commitment to a “government of laws and not of men,” he probably assumed that the rule of law meant the rule of laws, no matter how many laws there might be. He could not have imagined the modern proliferation and complexity of laws, or how subversive this is of the rule of law.
Such a subversion will confront Congress when it reconvenes. Congress is nimble at evading responsibilities but cannot avoid deciding either to repudiate or to tolerate a residue of President Obama’s lawlessness.
The Affordable Care Act requires insurance companies to insure people with “pre-existing conditions.” The individual mandate, requiring people to purchase insurance, is one way the ACA subsidizes insurance companies that are mandated to engage in money-losing undertakings.
The subsidy that Congress must confront in September is the ACA requirement that the secretary of health and human services devise a program to compensate insurers for the cost of selling discounted plans to some low-income purchasers.
But — speaking of awkwardness — although the ACA authorizes a permanent expenditure for this, an authorization is not an appropriation, and Congress has never provided an appropriation.
Difficult dilemma
Democrats are untroubled by the payments because progressives believe that unfettered presidents are necessary to surmount the inefficiencies, as progressives see them, inherent in the framers’ great mistake, as progressives see it — the separation of powers. Republicans, however, have a dilemma: Halting the payments might unleash chaos; continuing them seals Republican complicity in perpetuating the ACA.
Donald Trump has exceeded Obama’s executive willfulness, which at least strove for a patina of implausible legality. Last month, Trump said that, absent Republican success in replacing the ACA, he might end the payments “very soon.” Clearly, he thinks either spending or not spending unappropriated billions is a presidential prerogative.
Trump’s unparsimonious dispensing of words has included threats to intentionally cause the ACA to “implode” by halting the unconstitutional disbursement of unappropriated money. Were Trump constitutionally punctilious — entertain the thought — he would embrace the judge’s ruling on behalf of the House members, and, obedient to his oath of office, stop the unconstitutional payments. But chaos might envelop the ACA exchanges and then the wider individual insurance market, causing many millions of Americans severe mental and financial stress. Republicans can say “let the rule of law prevail though the heavens fall,” or they can say …
Enter Sen. Lamar Alexander, the Tennessee Republican who chairs the pertinent committee. He wants Trump to “temporarily” continue the payments “through September,” pending “a short-term solution” for stabilizing insurance markets “in 2018.” Watch carefully as Alexander copes with a pathology of modern — meaning, presidential — government unanticipated by John Adams: laws that subvert the rule of law.
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