Trump Should End Congress’s Illegal Obamacare Exemption
By Phil Kerpen
The House effort to repeal and replace Obamacare flamed out in spectacular fashion and leaders in Congress seem content to move on to other issues. But the American people continue to suffer with skyrocketing premiums and ever-smaller provider networks. About a third of the counties in America have only one insurance company left in the marketplace. Doing nothing is an unacceptable option.
So before the president moves on to the other issues on his ambitious agenda, there is one game-changer he can personally put into the mix to give Congress a powerful incentive to get its act together and move a repeal bill forward that can command majority support: end Congress’s illegal Obamacare exemption and force members and their staff to live under the law as long as the rest of America has to.
When Congress was debating Obamacare, one of the persistent demands from the American people was that if Congress is redesigning the health care systems for millions of others, they should subject themselves and their staff to their own handiwork. The demands worked, and before Obamacare passed the Senate in 2009, a provision was added, Section 1312(d)(3)(D), that requires members of Congress and their staff to buy health insurance through Obamacare exchanges and provides no taxpayer assistance beyond the income-related subsidies available to all eligible Americans.
That provision was set to take effect in 2014, so naturally members of Congress and their staff panicked in 2013 – desperate to do anything to keep their taxpayer-funded, gold-plated health care rather than go into Obamacare and pay their own way, as the law required.
Who saved Congress from Obamacare? Barack Obama.
After a little-noticed meeting with Senate Democrats in March 2013, Obama personally committed to illegally exempt Congress from Obamacare. And he delivered.
Obama directed the Office of Personnel Management to issue a rule (78 Fed. Reg. 60653-01) purporting that Congress, which has thousands of employees, is a small business and therefore: “the DC Health Link Small Business Market administered by the DC Health Benefit Exchange Authority, is the appropriate SHOP from which Members of Congress and designated congressional staff will purchase health insurance in order to receive a Government contribution.”
This fraud of instructing Congress to masquerade as a small business was the key to the scheme, because if members of Congress and their staff had signed up for Obamacare under the individual exchange – as any other American losing employer coverage would have – they would have had to pay their own premiums.
To implement this scheme, the House and Senate each filed a false declaration with the DC Health Benefit Exchange Authority claiming to have less than 50 employees – a fact that was never publicly disclosed.
These fraudulent documents were uncovered by FOIA litigation conducted by Judicial Watch, and make it impossible for anyone to dispute that Congress’s exemption from Obamacare is improper and unlawful. Quite simply, lawful schemes do not require the filing of fraudulent documents.
Fortunately, what President Obama did in directing the Office of Personnel Management to authorize Congress’s illegal exemption can be reversed by President Trump directing them to enforce the law as written. By doing so, Trump can send a clear message to Congress that their failure to move a repeal bill forward will impose very personal, very costly consequences on themselves and their staff – consequences from which they have been illegally shielded for years.