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EDITORIAL: Bailing out Obamacare

Congressional inquiry finds no legality for payout to insurers

- - Sunday, February 9, 2014

You don't need a degree in higher math to see that the numbers for President Obama's health care takeover don't add up. Obamacare doles out generous subsidies to the elderly in the expectation that healthy young people will pay higher premiums to cover the added costs of insuring the old.

The millennials, to Mr. Obama's surprise and sorrow, aren't as credulous as he thought they would be. They haven't signed up for Obamacare in appreciable numbers. So he's preparing a bailout, and what he has in mind may be against the law.

Tucked inside the thousand-page Obamacare legislation are provisions guaranteeing profits for insurance companies to entice them to play the government's game. If insurance firms join the exchanges and pay out more in medical claims than they anticipate, taxpayers would cover their losses.

The administration expected 40 percent of adult enrollees to be under age 35, but so far only 24 percent fit that crucial demographic. A scheme known as "risk corridors" would be used to pay back the private insurance companies for losses plus a 3 percent profit. With the prospect of "free" government cash, reimbursement requests will soon flood the bureaucracy.

When congressional inquisitors asked Kathleen Sebelius, the secretary of Health and Human Services, in December how much this would cost, she simply shrugged. "We won't know anything about what that risk corridor looks like until we get more enrollment," she said. Since it never bothered to get an estimate, the administration intends to write a blank check.

A new report by the Congressional Research Service says the White House can't do that. A bailout for insurers requires action by Congress, in an explicit appropriation of funds.

"Statutory and constitutional provisions," the congressional analysts found, "prohibit federal agencies from making payments in the absence of a valid appropriation. Under longstanding [Government Accountability Office] interpretations, an appropriation must consist of both a direction to pay and a specified source of funds."

There has been no such appropriation for "the risk corridor" program. Mr. Obama thinks he has the pen to sign as many checks as he needs to keep his health care scheme afloat.

The White House knows it can't take hat in hand to Congress to ask for a proper appropriation. Only a handful of Obamacare diehards would go on record this election year to authorize a billion-dollar giveaway to the insurance men, who are held in barely higher esteem than a congressman (or a journalist).

House Commerce Committee Chairman Fred Upton requested the legal analysis to rally support to force the president to obey the law. "This memo raises serious questions on the legality of the administration's plan," he says, "just the latest in a pattern of unilateral delays and actions outside the bounds of the law. We must protect taxpayer dollars even as the administration rushes to cover up its failures in implementing the health law."

If Congress, once so jealous of its constitutional prerogatives, allows the president to get away with taking unconstitutional control of the nation's purse strings, Congress will render itself irrelevant.

Mr. Obama will use his pen to spend whatever he thinks he can get away with. Congress must send the executive and his advisers to a class in remedial arithmetic.