October 17, 2017
A Post-Constitution America
President Donald Trump has announced that he will stop making Obamacare’s cost-sharing reduction (CSR) payments because they are unconstitutional. The Justice Department and a federal judge have agreed.
Yet the left and the media don’t care because the constitutionality of an action no longer matters—except when citing the Constitution advances their agenda.
The Affordable Care Act requires health insurers selling on the Obamacare exchanges to reduce out-of-pocket costs (e.g., deductibles, copays, etc.) for lower-income enrollees. And the law requires the federal government to reimburse insurers for those additional costs.
However, the U.S. Constitution requires Congress to appropriate all money spent by the federal government. Congress never actually appropriated the money to reimburse insurers.
President Obama realized the problem but decided he would make the payments anyway. It was a perfect example of his “So sue me!” approach to governing.
So Republicans sued the Obama administration and in May of 2016 federal Judge Rosemary Collyer agreed with Republicans: “Such an appropriation cannot be inferred,” which is what Democrats claimed.
As president, Trump continued making the monthly CSR payments—albeit unconstitutionally—believing Republicans would fulfill their promise to repeal and replace Obamacare, which would resolve the issue. But they failed.
Trump now says he will stop the illegal payments, and has encouraged Senator Lamar Alexander to move forward with legislation that would make CSR payments legal.
Democrats and Obamacare supporters decried the Trump decision as cold and heartless, and one that would hurt millions of people. Few if any of them ever mention the constitutional roadblock—because that doesn’t matter.
Similarly, the media have repeatedly megaphoned the left’s accusations and filled their stories with critical quotes. If those stories mention the unconstitutionality of the payments, it is usually only in passing—because constitutionality doesn’t matter to the media, either.
There was a day when both the left and the right believed that the Constitution mattered, and that its limits and restrictions had to be honored, even if one didn’t like the result.
Those days are largely gone. Even the First Amendment’s freedom of speech provision, long defended by the left, is coming under attack by progressives.
Conservatives and libertarians will continue to fight for the Constitution: both for what it says and what it means. And if we don’t like the results, there is a constitutional process to make changes. At one time liberals could be counted to be part of that fight. No more. Many of them now live in a post-Constitution America.