President Trump is Still Making Illegal Payments to Insurers Under Obamacare

For months, President Trump has threatened to cut off a series of payments being made to insurers participating in Obamacare’s exchanges.

These payments are known cost-sharing reduction subsidies (CSRs), and they are paid directly to insurers in order to offset deductibles and other out of pocket costs for lower income individuals enrolled in Obamacare plans.

Trump has held out these payments as political bargaining leverage, warning that if Congress did not act to repeal and replace the law, he would end the payments, and Obamacare would implode. Trump’s decision to treat the payments as discretionary ignores a federal court ruling that the payments never should have been made in the first place.

What, exactly, would happen if the payments were cut off at the end of 2017? Higher premiums, larger federal deficits, and short-term instability, according to a new Congressional Budget Office report.

Premiums would end up 20 percent higher than if the payments were continued, and 25 percent higher after 2020. Most individuals enrolled in Obamacare plans would not feel the impact of those premium increases directly, however, because insurers would raise the cost of plans that are subsidized through a separate provision in Obamacare. Those subsidies, a form of tax credit, rise with the price of premiums, and, as a result, the federal deficit would increase by about $194 billion over a decade.

In addition, CBO predicts that some insurance plans would drop out of the individual market next year, leaving about 5 percent of the country without access to an Obamacare plan in 2018. By 2020, however, insurers would re-enter the market in most places. In the short-term, about 1 million fewer people would be covered, but after 2020, the CBO estimates that coverage rates would be higher by about 1 million, owing primarily to the interaction between the CSR payments and the law’s tax credit.

The result, in other words, would not be a full-on implosion, but increased short-term instability, and higher federal spending on Obamacare going forward. In addition, it is possible that if the federal government cut off CSR payments, some states would set up programs to funnel money to insurers using the health care law’s state waiver program.

The CBO, as an economic forecasting organization, treats the potential end of the health law’s CSR payments primarily as a policy question, looking at the likely ripple effects on the insurance market as it exists under Obamacare. And Trump has treated the CSR payments as a point of executive branch discretion, to be dangled in hopes of gaining political leverage.

But the reason that the future of the payments is uncertain is that they are the subject of a legal dispute left over from the Obama era. The CSR subsidies are called for in the statute of Obamacare, but Congress declined to appropriate any money for them. The Obama administration, which had requested an appropriation, decided to pay them anyway.

House Republicans sued the Obama administration, arguing that under the Constitution, only Congress has the power of the purse, and that Congress was injured as an institution when the Obama administration made the payments without a clear appropriation.

Last year, a federal judge sided with House Republicans, ruling although the payment had been authorized under the law, it had not been appropriated. “Congress is the only source for such an appropriation,” Judge Rosemary Collyer’s ruling declared, “and no public money can be spent without one.” The payments had been made illegally. The ruling was stayed pending appeal, and has been on hold since Trump won the presidency.

The point of the House GOP lawsuit, then, was that the executive branch does not have a choice. Either the administration has an affirmative duty to make the payments, or it has an affirmative duty not to make them. The judge ruled that the president has an affirmative duty not to make the payments without an explicit Congressional appropriation, and that doing so violates the Constitution.

There may be reasons to quibble with the particulars CBO’s estimates, which are, as always, subject to substantial uncertainty. But the policy ramifications of cutting off these payments are worth understanding, especially since today’s report suggests that cutting off federal payments now would lead to greater spending in the long term.

Yet in assessing the Trump administration’s actions, the relevant question is not what effect they would have on premiums or coverage or spending, but whether they are constitutionally justified. Judge Collyer’s ruling was clear that they are not. By continuing to make these payments, and by treating them as a matter of executive discretion, Trump is participating in and perpetuating illegal and unconstitutional behavior.