There was a time in American politics when the term "unfunded mandate" became a term lobbed back and forth among opposing political groups. It referred to laws passed by one group that called for spending money that didn't exist anywhere — at least, according to the other group.
The term seems to have lost its edge as unfunded mandates became as common as initiative petitions and elected official recalls. But a new one may soon rise to take its place: the unmandated funding phenomenon, now beginning to catch fire in Congress.
The health insurance subsidy that forms a critical element of the Affordable Care Act is a good example of this latest artifice used by one party to get what it wants without having to get the other party's approval.
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As outlined by The New York Times' Carl Hulse, a brouhaha is building in Congress over the subsidies. Opponents of the ACA and, in particular, of the subsidy to low-income consumers, assert that the White House has never been authorized by Congress to create the fund that provides for the subsidized insurance coverage. (The fund is replenished by money paid in by insurers and employers.)
Citing recent administration testimony on the matter before Congress, Hulse concludes that the subsidy opponents are correct: Congress never authorized such a fund, which flies in the face of the U.S. Constitution.
This, Hulse warns, could open up the floodgates to presidential abuse of the exchequer. He raises the specter of a President Trump dipping into an unauthorized fund to build a wall between the United States and Mexico. Or President Hillary Clinton doing the same to create a college tuition grant program.
Yet, as with all matters theoretical — and especially those that fall into the "unfunded mandate" category — the upshot may well be that nothing will be done about the subsidy fund.
Hulse notes that Congress is so split along party lines "that the appropriations process barely functions." Democrats have so far successfully pooh-poohed Republican concerns about the unmandated fund, labeling it just more GOP whining about the proudest product of the Obama regime.
A Treasury Department official suggested that Congress could pass a bill specifically prohibiting drawing money from the subsidy fund — a step no one will attempt, Hulse predicts.
And, while the GOP may rail against the ACA, most wags think it's here to stay, and that anyone who gets tagged with dismantling the subsidies will be him or herself dismantled by voters.
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Dan Cook
Dan Cook is a journalist and communications consultant based in Portland, OR. During his journalism career he has been a reporter and editor for a variety of media companies, including American Lawyer Media, BusinessWeek, Newhouse Newspapers, Knight-Ridder, Time Inc., and Reuters. He specializes in health care and insurance related coverage for BenefitsPRO.
