Morton Rosenberg says congressional investigators used to be able to put uncooperative agency officials in prison. (Photo: Hearing video screen capture)

A witness testified today that the Obama administration’s failure to provide information about how it developed an Affordable Care Act subsidy funding policy is part of a dangerous trend toward the executive branch overpowering Congress.

Morton Rosenberg, a lawyer who worked for the Congressional Research Service for about 35 years, said at a House Energy and Commerce oversight subcommittee hearing in Washington that presidential administrations are making more use of a 1984 U.S. Department of Justice ruling that limits the ability of congressional investigators to have the department put uncooperative administration officials in prison for contempt of Congress.

The department decided then that it should not enforce contempt-of-Congress citations against officials who are withholding information about executive branch deliberations at a president’s request, and administrations are now using that ruling to block the ability of Congress to see what the executive branch is doing, Rosenberg said at the hearing, which was streamed live on the Web.

Because of the effects of the 1984 ruling on congressional investigators, “Congress is under literal siege by the executive,” Rosenberg said. “Congress has to protect its investigative authority.”

The subcommittee organized the hearing to look at allegations that the Obama administration is operating the ACA cost-sharing reduction subsidy without a valid appropriation from Congress.

Related: Democrats defend ACA subsidy program funding

The subsidy program helps ACA public exchange plan users who earn less than 250 percent of the federal poverty level pay plan deductibles, co-payments and coinsurance amounts.

Contention

Obama administration officials say the U.S. Department of Health and Human Services and the U.S. Treasury Department can use the same ACA provision that provides a permanent appropriation for the ACA premium tax credit subsidy program to operate the cost-sharing reduction subsidy program, because the cost-sharing reduction subsidy program is integrated with the premium tax credit subsidy program.

Democrats in Congress have accused Republicans of using endless streams of requests for documents and hearing testimony to harass the Obama administration officials in charge of implementing ACA rules and running ACA programs.

Republican critics of the ACA say they have faced serious, chronic problems with getting even basic information about ACA programs, such as the number of enrollees in ACA small-group exchange plans, or the number of surviving Consumer Operated and Oriented Plans that are getting extra attention from the regulators in charge of the struggling CO-OP program.

House leaders are suing the Obama administration over the cost-sharing reduction program in federal court and have won a verdict at the district court level.

Suing for information takes time, and the fact that the House is turning to the courts to help it get information from the Obama administration shows how weak it is, Rosenberg said.

To be effective, congressional investigators must “invoke respect, if not fear,” and the only way they can regain the respect they need is if they regain their ability to enforce contempt citations, Rosenberg said.

  

 

Related:

Chaffetz accuses HHS of resisting CO-OP document subpoena

Court ruling threatens $5 billion in PPACA insurer subsidy payments

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