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Who needs Congress?

Friday, October 7, 2016 13:19
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Andrew McCarthy writes,

Much has been made of Bill Clinton’s accidentally telling the truth about the Obamacare – that it’s “the craziest thing in the world” to have “this crazy system” in which working people “wind up with their premiums doubled and their coverage cut in half.” But it is crazy like a fox, which the former president and his wife know because they are the foxes. The Clintons, like the incumbent president, want to “fix” the quite intentionally crazy system with ever more government control and socialization of costs.

…The challenge for our lawless president is the usual one: the law.

…Congress does not appear inclined – at least before the election – to enact a bailout. Consequently, Obama is poised to go with what we might call the Iran Plan: Nod-and-a-wink lawsuits by the insurers, which the administration will “settle” by paying in judgments what Congress won’t provide in legislation.

…Recall Obama’s recently revealed $1.7 billion ransom payment to the ayatollahs for the release of four American hostages held by the regime. The president was well aware that Congress would never approve such a payment (which would have involved at least $1.3 billion to supplement the $400 million the executive branch was holding from a failed shah-era arms deal). So the administration quietly arranged to settle a suit brought by Iran, agreeing to pay the additional $1.3 billion out of the Judgment Fund.

To ensure that no one would be any the wiser, Treasury made 13 transfers of $99,999,999.99, with no mention of Iran in the Judgment Fund’s public listings – just an acknowledgment that the transfers involved some undescribed matter (or matters) in which the State Department was a party. Had the stellar investigative journalist Claudia Rosett not discovered the transfers, we would probably still be in the dark about how Obama came up with the money.

At the time, Ms. Rosett reported that the Treasury Department describes the Judgment Fund as a “permanent, indefinite appropriation” available to pay legal judgments against federal agencies “where funds are not legally available to pay the award from the agency’s own appropriations.” As I countered, there is only one reason why funds would not be “legally available to pay . . . from an agency’s own appropriations”: namely, that Congress has not made an appropriation that gives the agency permission to pay the funds in question. That is supposed to mean the agency does not pay.

Obama is using the Judgment Fund as a limitless credit line to pay out any amounts he chooses, no matter how exorbitant, when Congress won’t cooperate by appropriating funds. It’s a simple device: encourage the party the White House wants to pay off to file a lawsuit against the United States; regardless of how frivolous the legal claim may be, the Justice Department in its discretion chooses to settle the case. The Judgment Fund is then tapped to pay the settlement. Who needs Congress?

Well, the Constitution says the president needs Congress. Under Article I, section 9, “No Money shall be drawn from the Treasury but in Consequence of Appropriations made by Law[.]” Article I makes clear that appropriations may only be made by Congress. It is an essential limitation on executive power. There cannot legitimately be a “permanent, indefinite appropriation” that enables the president to pay any obligation he unilaterally chooses to impose on taxpayers.

…Congress must act to end this corrupt device. Either defund the Judgment Fund or set strict limits that require the administration to seek individual congressional appropriations for judgments above a certain amount (say, $1 million), and judgments of certain types (e.g., payments to countries on the list of state sponsors of terrorism, or payments to parties for whom Congress has already provided a set amount in the budget).

In the unlikely event that the Constitution permits a “permanent, indefinite appropriation,” President Obama plainly cannot be trusted to administer it. Congress must either tightly regulate resort to the Judgment Fund or scrap it entirely. Otherwise, future presidents will rely on Obama’s imperial precedent, undoing a crucial protection against autocratic government.

Read more here.


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