by John Malcolm & Michael F. Cannon | September 05, 2017
Washington Examiner "Contrary to assurances and in violation of federal law, the Obama administration shielded lawmakers from an effective pay cut of up to $12,000 each by granting Congress several types of special treatment unavailable to the public.
Obama took these steps because he knew Congress would have quickly revamped or even repealed Obamacare if lawmakers had to live under its terms. President Trump seems to agree, and has threatened to end the exemptions and subsidies. "If a new HealthCare Bill is not approved quickly," he tweeted recently, "BAILOUTS for Members of Congress will end very soon!" For Better or Worse, Congress Cut Its Own Pay Prior to Obamacare, federal law treated members of Congress and their staffs like other federal workers. They received health benefits through the Federal Employees Health Benefits Program (FEHBP) and a tax-free federal contribution of up to $12,000 toward their premiums. When Congress passed Obamacare, it shut members of Congress and their staffs out of the FEHBP and ended those premium contributions. "Notwithstanding any other provision of law," the text of the law says, "after the effective date of this subtitle, the only health plans that the Federal Government may make available to Members of Congress and congressional staff" as an employee benefit "shall be health plans that are created under this Act," such as those "offered through an Exchange." That provision bars premium contributions for Congress in several ways.
In case there was any lingering uncertainty, additional provisions of federal law also bar Congress from receiving employer contributions to exchange plans. Federal law prohibits employer contributions in Obamacare's individual-market exchanges, while Obamacare itself prohibits any employer with more than 100 employees—such as Congress—from participating in the law's small-business or "SHOP" exchanges. For better or worse, when Congress passed Obamacare, it cut congressional pay by leaving members and staff to buy health insurance without a federal contribution to their premiums. Nothing in Obamacare or federal law exempts members and staff from that pay cut. Indeed, not exempting Congress was the entire point. Obamacare forces lawmakers into the exchanges for the purpose of making lawmakers live under the same rules they were imposing on everyone else. Any sort of exemption would defeat this express purpose of the statute. Since Obamacare provides no other effective date, Congress' banishment from the FEHBP and the accompanying pay cut should have taken effect immediately upon Obama signing the law on March 23, 2010. Obamacare for Thee, But Not for Me Instead, the Obama administration immediately ignored that provision and continued to do so for nearly four years. Contrary to Obamacare, and citing no legal authority, the administration allowed Congress to keep enrolling in FEHBP coverage, and to keep receiving the FEHBP premium contribution, until 2014. The congressional pay cut should have become unavoidable when the Obama administration finally got around to ousting members and staff from the FEHBP in 2014. Indeed, as Politico reported, "OPM initially ruled that lawmakers and staffers couldn't receive the subsidies once they went into the exchanges." But as Politico also reported, "This caused an uproar in Congress." Responding to pleading from both parties in Congress, Obama personally intervened and pressured OPM to reverse its initial (and correct) interpretation of the law. The agency acquiesced. Contrary to OPM's initial ruling, to the letter and spirit of Obamacare, and even to the agency's own authorizing statute, OPM ruled Congress could both enroll in the District of Columbia's small-business exchange and keep receiving the FEHBP premium contribution. D.C. officials played along by ignoring a D.C. law prohibiting participation in its small-business exchange by all but " employers with 50 or fewer…employees." Thanks to those illegal exemptions, members of Congress and congressional staff are receiving an also-illegal subsidy of up to $12,000 toward their health insurance premiums. Those exemptions even give Congress privileged status among federal employees: Members and staff are the only group of federal workers who receive FEHBP premium contributions toward non-FEHBP coverage. At no point have the Obama administration, OPM, Congress, or any other defenders of this exemption cited any statutory authority either for the OPM to contribute to the premiums of health plans the agency has not " approved" to participate in the FEHBP, or for allowing just this one large employer to participate in a small-business exchange. In its rule announcing the policy, the OPM made no mention at all of the employer-size restrictions in federal and D.C. law that bar large employers from participating in D.C.'s small-business exchange, and offered only blandishments such as"we believe that it is appropriate" to offer the disputed contributions. That's just not good enough. There is an entire constitutional amendment devoted solely to limiting congressional pay. The 27th Amendment forbids any congressional pay increase from taking effect until after the next federal election. Here, a president personally intervened to produce an agency rule that just happened to increase congressional pay up to $12,000 per member more than federal law allows. It also kept each member's staff from falling apart, a benefit most members likely value even more. A Tangled Web We Weave The officials who implemented this scheme betrayed its illegality, and likely violated criminal laws, when they knowingly and repeatedly made false statements to skirt the legal barriers in their way. Obamacare prohibits employers with more than 100 employees from participating in its small-business exchanges. For calendar year 2014, however, both federal and D.C. law prohibited employers with more than 50 employees from participating in D.C.'s small-business exchange. Obviously, neither the House of Representatives nor the Senate qualifies. The House has 435 voting members. The Senate has 100 senators. Each chamber employs thousands upon thousands of staff. Yet a Freedom of Information Act request filed by the watchdog group Judicial Watch revealed that in Nov. 2013, unknown House and Senate officials filed applications with D.C.'s small-business exchange in which they falsely attested the House has only 45 members, and the Senate only 45 employees total—each just under the statutory limit." Source: www.washingtonexaminer.com/congress-illegal-and-egregious-obamacare-exemption-explained
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