Is Congress Above the Law?

Is Congress Above the Law?

Ilya Shapiro
Cato Institute
December 8, 2010


The first item on this election campaign’s Contract with America was that, if elected (as they have been), the House Republicans would require that all laws that apply to the rest of the country also apply to Congress. We’ll see if that and the other promised reforms materialize, but it does raise yet another issue in the context of Obamacare.

As my colleague Michael Cannon pointed out to me, the new health care law kicks congressmen out of the Federal Employees Health Benefits Program. (The current FEHB is no different from the health coverage provided by any private employer -– federal employees choose from a series of private plan options (none of which is run by the government), and receive a subsidy from the federal government acting in its role as an employer.)

My first reaction to hearing this was: Good — if the rest of us lose our health care freedom, so should those who forced this new atrocity on us. But apparently this result was not intended, so the Obama administration has decided to ignore that part of the law.

No joke. Here is the Congressional Research Service report ^[1] on the provisions that oust members of Congress from their health insurance. And here is the letter ^[2] in which an Obama appointee announces that the administration will ignore the law. These two ^[3] articles ^[4] also provide important information.

Now, assuming that something constitutionally problematic is going on here, what can anyone do about it? To put it in legal terms, who has standing to sue for this apparent constitutional violation? It’s a tough row to hoe — taxpayers cannot bring suit based on generalized grievances — but off the top of my head, I can think of two possibilities: (1) members of Congress suing the president or the Department of Health and Human Services for essentially passing new law and therefore infringing on congressional prerogatives (thereby violating the separation of powers); or (2) an insurance broker or carrier who would otherwise be signing up new clients.

And there are two additional related questions:

1. Why did Congress expand Medicaid while refusing to participate in it themselves? Obamacare expanded Medicaid to an estimated 18 million new Americans ^[5], none of whom will have a choice of private plans, instead being dumped into Medicaid, a program notorious for access problems (and which in Arizona now doesn’t cover organ transplants ^[5]). Yet all Senate Democrats voted against ^[6] an amendment enrolling members of Congress in the new Medicaid program (all Republicans voted for it, except one who was absent).

2. Will members of Congress use their own salaries to pay any fines assessed because their employees have “unaffordable” health coverage? Obamacare includes a $2,000 per worker penalty for any employer that does not provide “affordable” coverage, beginning in 2014. Many junior staffers have incomes below 400 percent of the federal poverty level ($43,320 for a single person, or $88,200 for a family of four), and thus could be subject to the new statutory test of whether their health insurance options are “affordable.” While it’s unclear how this particular provision will be implemented for Hill staff – due to the “significant unintended consequences ^[3]” of sloppy drafting — it’s entirely possible that member offices could be assessed a $2,000 penalty for every worker needing insurance subsidies because they have no “affordable” alternative. If that scenario happens, will the members of Congress who voted for the law pay the penalty out of their own salaries or will they rely on taxpayer funds to finance an obligation they imposed on themselves?


References in this post:

[1] report: http://coburn.senate.gov/public/index.cfm?a=Files.Serve&File_id=045cebde-13b7-40d6-b5d5-2fddbdc64704

[2] letter: http://media.npr.org/assets/blogs/health/images/2010/04/Pelosi-Reid%20on%20FEHB%20coverage.pdf

[3] two: http://www.nytimes.com/2010/04/13/us/politics/13health.html

[4] articles: http://www.washingtonpost.com/wp-dyn/content/article/2010/04/20/AR2010042005163.html

[5] 18 million new Americans: http://www.cms.gov/ActuarialStudies/Downloads/PPACA_2010-04-22.pdf

[6] voted against: http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=111&session=2&vote=00071

Just another one of those "opinion" pieces backed up by factual content and links to go with it.