- - Wednesday, November 23, 2016

As President-elect Trump ponders priorities for his ambitious First 100 Days agenda, he should consider an executive option that would kill two birds with one stone — overturning by Presidential Memorandum the infamous Office of Personnel Management ruling that allowed Members of Congress and their staffs to continue receiving generous taxpayer subsidies toward their purchase of health insurance under Obamacare in violation of the law.

If ever there were a political no-brainer, this is it.

Repealing Congress’ special exemption from Obamacare regularly polls at the 90+ percent level, and for good reason — the illegal ruling by OPM once again allowed Members of Congress (and their staffs) to live by a different set of rules than those they imposed on the rest of America.

Worse, by exempting the legislative branch from the pernicious effects of this particular law, it allows Members and their staffs to avoid the personal pain (financial and health) imposed by the monstrosity they imposed on the rest of us, and, by doing so, delays its inevitable repeal.

The good news is, President Trump won’t have to wait for congressional action on this — he can undo the illegal ruling by simply signing his name to a Presidential Memorandum directing the OPM to reverse its 2013 rule considering Congress a small business, which directed that, consequently, “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.”

Note — “Government contribution,” in the language of those who live outside the Washington Beltway, should be read as “illegal taxpayer-funded subsidies.”

Let’s back up.

When Obamacare was first being considered, the Senate adopted an amendment to require that Members of Congress and their staffs leave behind their lavish Federal Employee Health Benefit Plan benefits — which included generous taxpayer-funded subsidies toward the payment of their premiums — and enroll in one of the Obamacare exchanges so that they would live under the law the same way the rest of the citizenry would have to.

(For those playing at home, the relevant section of the law is Section 1312(d)(3)(D).)

But a year before that particular provision was set to go into effect, congressional leaders in both parties and on both sides of the Capitol dome began to make loud noises about how this would lead to a feared “brain drain,” as staffers, now forced to pay the full cost of their (new Obamacare) health insurance, instead would opt to decamp to the more financially rewarding environs of K Street.

They begged President Obama for special treatment, to avoid having to tell their own staffers that the law was the law, and living under the law meant that they were going to have to give up their generous (roughly $5,000 for an individual policy, and roughly $11,000 for a family policy) taxpayer-funded subsidies.

President Obama responded favorably to their request, and directed the Office of Personnel Management to fix the problem. OPM did as it was directed, issuing a ruling that decreed Congress a small business … despite the fact that Congress employs almost 20,000 people.

(Again, for those playing at home, the OPM rule can be found in the Federal Register as 78 Fed. Reg. 60653-01.)

The reason for the dishonest classification of Congress as a “small business”? Washington, D.C. has two Obamacare exchanges — theindividual exchange and the small business exchange. The individual exchange prohibits an employer subsidy. The small business exchange allows employers to contribute to the individual employees’ health insurance. Thanks to OPM’s special exemption for Congress, Members of Congress and their staffers were able to enroll in the small business exchange — despite the clear language of the law that the small business exchanges are only available to entities with 49 or fewer full-time employees. But, no matter. Members of Congress and their staff members were intent on carving out a special exemption for themselves from the law that was causing untold amounts of damage to everyday Americans.

Once Congress was declared a small business, the subsidies were back on, and the feared “brain drain” didn’t come to pass.

Instead, Congress had once again found a way to avoid living by the same laws it imposes on the rest of us. And those voters who paid attention had one more reason to dislike and distrust the Washington Establishment.

(When pressed by their angered constituents about this special exemption, Members of Congress and their staffers often take the easy out by lying and saying all they are doing is taking advantage of the law’s provision that employers can provide health insurance subsidies to their employees. The truth is that no other large employer in the country is allowed, under Obamacare, to provide this type of health insurance subsidy. The law explicitly prohibits employers of larger companies — with 50 or more employees — from providing Obamacare exchange subsidies to their employees. Congress thus benefits not only from a special OPM exemption from the law, but also from the widespread confusion about the law’s exact requirements. The sheer complexity of the law, which is incomprehensible to the average American, makes it easy for Congress to obfuscate and dodge the simple truth that the legislative branch gets its own illegal special exemption from Obamacare.)

Now comes Trump, elected on a promise to repeal Obamacare and another promise to “drain the swamp” that is Washington, DC.

Repealing Congress’ special exemption from Obamacare would kill two birds with one stone — first, it would be executive action that would, in this instance, put Congress back under a law it found a way to wiggle out of for itself (and thereby contribute to draining the swamp); second, by forcing Members of Congress and their staffs to actually live under the law and raise their out-of-pocket expenses to the same extent the law does that to others forced to purchase their health insurance on the Obamacare exchanges, it would presumably raise the temperature inside congressional offices (and with congressional spouses) to the point where the law’s repeal would be hastened.

Sadly, President-elect Trump isn’t likely to hear about this option from Capitol Hill. In fact, most Members of Congress he might consult on this would likely try to warn him off, telling him this is no way to begin a new presidency with a new Congress, and shouldn’t he look instead at some other shiny object?

Trump has demonstrated an ability to make his own judgments. Here’s hoping he sees the opportunity to kill two birds with one stone, and loads up his sling.

(The author would like to thank Phil Kerpen, President of American Commitment, for research assistance in the preparation of this column.)

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