AJOC EDITORIAL: Trump restores separation of powers

After President Barack Obama used Congressional intransigence as an excuse to upend the separation of powers spelled out in the Constitution, President Donald Trump is using the same reason to restore it.

Not once, not twice, but more than two dozen times, Obama told audiences and interviewers that the Constitution did not allow him to use an executive order to change the immigration status of millions of people brought to the country illegally as children.

Congress refused to pass the DREAM Act, and Obama proceeded to violate his previous claims by issuing an executive order to create the Deferred Action for Childhood Arrivals, or DACA, program, which granted legal status to those who claimed their parents brought them to the United States illegally as children.

A group of state attorneys general promptly sued and a federal district court judge issued an injunction against continued implementation of DACA.

In another case, once the Republican Party took full control of Congress following the 2014 midterm elections it refused to appropriate funds for the Cost Sharing Reduction payments under the Affordable Care Act also known as Obamacare.

Obama’s administration ignored the lack of authorization and continued sending the payments to insurance companies, which led to an unprecedented lawsuit in which the House of Representatives was granted standing to sue the president.

Again, a federal district court judge decided that Obama’s actions were outside the bounds of the Constitution and ruled the payments illegal without an appropriation from Congress. The judge stayed her own ruling as the appeal was processed, and Trump continued to make the payments on a month-to-month basis after inheriting the lawsuit from Obama’s Justice Department as he waited on the GOP to deliver on seven years of promises to repeal and replace Obamacare.

Now, by giving the DACA program an expiration date less than six months away and turning off the illegal CSR payments as of Oct. 13, Trump is forcing Congress to work rather than continue to rely on unconstitutional actions by the executive branch.

Few sights are more amusing lately than watching the unhinged left that has spent every day since Jan. 20 declaring Trump either a tyrant or one in the making now demand that he continue Obama’s acts that have been declared unconstitutional by federal courts.

Just days after Trump announced an end to the CSR payments, Senate Health, Education, Labor and Pensions Committee Chair Lamar Alexander, R-Tenn., and ranking Democrat Sen. Patty Murray announced the outline of a deal that would restore the payments with an actual appropriation from Congress and create more flexibility for states through block granting the funds and expediting the Section 1332 waiver process.

The 1332 “innovation waivers” under the Affordable Care Act allow states to create programs suited to their needs and allow federal funding for them so long as they are deficit neutral.

Alaska received one of the first such waivers earlier this year after creating a reinsurance program in 2016 as Premera Blue Cross Blue Shield, its lone remaining insurer serving the individual market, was considering rate hikes of as much as 42 percent for 2017 after increases of nearly 40 percent in the previous two years that shot the state’s premiums to the highest in the country at nearly $1,000 per month for a silver plan.

Using an existing fee structure on every insurance policy sold in the state, the state directed $55 million to offset the costs of the few dozen high-cost customers in the small individual pool, which led to a much smaller rate increase of 7 percent this year.

The cost of premium support tax credits that go to about 90 percent of the individual pool dropped dramatically. The 1332 waiver will now allow money that would have gone to premium support to flow to the reinsurance program — with savings for both the state and federal government — and the end result being Alaska is likely the only state in the country to not see a rate hike in 2018. In fact, Premera’s rates will drop by more than 21 percent.

Alaska’s premiums will still rank highest in the nation, but at least there was some progress and it is a good thing that the HELP Committee, of which Sen. Lisa Murkowski is a member, heard from Alaska Division of Insurance Director Lori Wing-Heier about how the state’s return to isolating its high-risk pool from generally healthier customers helped lower costs.

The fate of the Alexander-Murray proposal is far from certain, but having a Democrat of Murray’s stature on board is precisely the outcome that Murkowski has been clamoring for and one that wouldn’t have happened had Trump not returned to constitutional order and forced Congress to do its job by ending the illegal CSR payments.

Andrew Jensen can be reached at andrew.jensen@alaskajournal.com.

Updated: 
10/18/2017 - 12:47pm

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