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Obamacare, Executive Power and the Rule of Law

Megan McArdle is a Bloomberg View columnist. She wrote for the Daily Beast, Newsweek, the Atlantic and the Economist and founded the blog Asymmetrical Information. She is the author of "“The Up Side of Down: Why Failing Well Is the Key to Success.”
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A few weeks back, I noted that a judge had ruled against the Obama administration in a dispute over health-insurance subsidies. Some background: Obamacare makes insurers reduce out of pocket costs, like deductibles, to low-income people who purchase qualifying plans; the government is supposed to reimburse the companies directly. However, Congress didn’t appropriate any money to pay for these subsidies. When the administration went ahead and paid the insurers anyway -- distributing about $7 billion without congressional approval -- House lawmakers sued.

Now it appears that House Republicans, and Judge Rosemary Collyer, aren’t the only folks who thought the administration’s actions were questionable. A report in the New York Times this weekend says that IRS officials raised concerns that the administration had no legal authority to spend the money. Starting in 2013, former IRS financial risk officer David Fisher and his supervisor “began having qualms about how the White House was planning to proceed,” according to the Times account. “In combing through documents to make sure his agency could defend the spending in future audits, Mr. Fisher said he came up empty.”

No one has really come up with a stronger defense of the administration's tactics. The better critics of the House lawsuit rest their complaints about standing -- whether the House has the authority to sue the administration over such matters -- and not on an argument that the administration was actually within the law.

When I wrote about this last month, I pointed out the troublesome implications of saying that the House has no standing to sue: Administrations can just go ahead and spend whatever money they want, and however far they are outside the law, no one will have the authority to stop them, even though the power of the purse is quite clearly vested in the legislature and not the executive branch. But the implications of Mr. Fisher’s account are even more troubling: The administration has basically decided upon that as a strategy.

The administration’s defenders may argue that they had no choice, because Congress was using the power of the purse to block implementation of Obamacare. To which I say: “Indeed they were.” People who long for parliamentary-style powers will note that this is the American equivalent: The administration forced through an unpopular law, which resulted in their losing control over the legislature, which in turn resulted in that legislature doing what it could to undo the unpopular actions. They were acting within the law and their constitutional authority, however much you may dislike their tactics. The administration was not. As I believe a president of the United States once remarked, “Elections have consequences.”

Obama is hardly the first president to rely on expansive readings of executive power to push through his plans over the objections of Congress. But there’s a fine line between “expansive reading” and “Who cares what the law says?” If neither the courts nor Congress can stop an administration from deciding that a law means whatever they want it to mean, then perhaps we don’t really want a presidential system. Perhaps we actually want an emperor.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Megan McArdle at mmcardle3@bloomberg.net

To contact the editor responsible for this story:
Tracy Walsh at twalsh67@bloomberg.net