In a recent Wall Street Journal article:

The Affordable Care Act requires Members of Congress and their staffs to participate in its insurance exchanges, in order to gain first-hand experience with what they're about to impose on their constituents. [...]

And now the White House is suspending the law to create a double standard. The Office of Personnel Management (OPM) that runs federal benefits will release regulatory details this week, but leaks to the press suggest that Congress will receive extra payments based on the FEHBP defined-contribution formula, which covers about 75% of the cost of the average insurance plan. For 2013, that's about $4,900 for individuals and $10,000 for families. [...]

This latest White House night at the improv is also illegal. OPM has no authority to pay for insurance plans that lack FEHBP contracts, nor does the Affordable Care Act permit either exchange contributions or a unilateral bump in congressional pay in return for less overall compensation. Those things require appropriations bills passed by Congress and signed by the President.

But the White House rejected a legislative fix because Republicans might insist on other changes, and Mr. Obama feared that Democrats would go along because they're looking out for number one. So the White House is once again rewriting the law unilaterally, much as it did by suspending ObamaCare's employer mandate for a year.

Is it illegal for the President (or an office of the Executive Branch like the OPM) to write regulatory legislation that pays for insurance or increase pay to offset loss in benefits of Congress or Congressional staff? (or does it require an appropriations bill from Congress)

If it is illegal, what remediation is available to taxpayers? (I would suspect that a citizen wouldn't have standing to bring this issue before the court, but I may be wrong)


1 Answer 1


First this is not legislation this is an executive order, which is an action the president can take to make sure the government is able to function. In theory congress should come in and address the issue that the executive order was enacted for at their next meeting. But the action most often taken is not to address the EO and allow it to stand.

Well this could be considered a violation of the 27th Amendment to the Constitution

The Twenty-seventh Amendment (Amendment XXVII) prohibits any law that increases or decreases the salary of members of the Congress from taking effect until the start of the next set of terms of office for Representatives. It is the most recent amendment to the United States Constitution. It was submitted to the states for ratification in 1789 and was adopted in 1992.

The interesting part here is what remedy there is. In order to file a suit to challenge this you must have standing to bring the case. In order to have standing you must be able to show:

  1. The party is directly subject to an adverse effect by the statute or action in question, and the harm suffered will continue unless the court grants relief in the form of damages or a finding that the law either does not apply to the party or that the law is void or can be nullified. This is called the "something to lose" doctrine, in which the party has standing because they directly will be harmed by the conditions for which they are asking the court for relief.
  2. The party is not directly harmed by the conditions by which they are petitioning the court for relief but asks for it because the harm involved has some reasonable relation to their situation, and the continued existence of the harm may affect others who might not be able to ask a court for relief. In the United States, this is the grounds for asking for a law to be struck down as violating the First Amendment, because while the plaintiff might not be directly affected, the law might so adversely affect others that one might never know what was not done or created by those who fear they would become subject to the law – the so-called "chilling effects" doctrine.
  3. The party is granted automatic standing by act of law. Under some environmental laws in the United States, a party may sue someone causing pollution to certain waterways without a federal permit, even if the party suing is not harmed by the pollution being generated. The law allows them to receive a portion of any fines collected by the government from their violation of law. In some U.S. states, a person who believes a book, film or other work of art is obscene may sue in their own name to have the work banned directly without having to ask a District Attorney to do so.

It will be very difficult to show that providing allowances to cover the cost of insurance from the exchanges has damaged you. The justice department could bring suit since it it charged with defending the United States and the Constitution in court but being as they report to the President that is not something we can expect. A states attorney general could file suit as well but they would have to show that this breach violates the states rights.

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    Hmm... " providing allowances to cover the cost of insurance" could be argued to damage me as a taxpayer. But IANAL so not sure how that legal theory would fare in front of the judge.
    – user4012
    Aug 8, 2013 at 14:57
  • @DVK - how are you "directly subject to an adverse effect by the statute or action in question" - The money you pay in taxes stops being your money when you give it to the government. Aug 8, 2013 at 17:27
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    Unless explicitly legislated to be revenue neutral, it increases either my tax burden, or the deficit. Both negatively affect me. Depending on whether the judge is a Demorcat or not, he may grasp this trivial economic truth or think that budget money grows on trees.
    – user4012
    Aug 8, 2013 at 19:11
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    @DVK - You would have to be able to show that the specific increase has led to inflation. Being as the expense is probably going to be less than 1 million that is less that a millionth of the deficit... And while i agree it contributes to the problem by it self it is not a problem, thus doing you no signifigant harm so as to provide you cause. If it was easy we would have stopped this along time ago. Aug 10, 2013 at 14:38
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    @DVK - Statistically for you the harm is probably going to be 0. You have to be able to show that you were actually damaged. If you damage is 0 then you were not actually damaged. And there are many economic theories that disagree with the definition of inflation that you have presented. But this is chat so please stop with the comments unless you can show REAL harm. Aug 11, 2013 at 14:39

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