33

Recently, the US president posted yet another tweet, stating that:

If a new HealthCare Bill is not approved quickly, BAILOUTS for Insurance Companies and BAILOUTS for Members of Congress will end very soon!

The second part of this tweet caught my attention. From what I interpret it, the president would like to punish the members of Congress financially for not passing a law that he approves. This had me wondering if the US president is able to unilaterally hurt the members of Congress financially. Would this be part of his executive powers and what would be the mechanism to obtain such a result?

I am only asking if and how Trump could substantiate his threat. I am not asking if it would be a wise or realistic thing to do.

  • 7
    Realistically, I can't think of a better way to get Congress to impeach the President :-) – jamesqf Jul 30 '17 at 17:25
  • 21
    Can we rename this site to "please explain Trump's Tweets"? – user1530 Jul 31 '17 at 6:51
  • 9
    @blip maybe turn it into a tag? – JAD Jul 31 '17 at 8:18
  • 3
    @blip maybe we need a trump.stackexchange.com proposal? – corsiKa Jul 31 '17 at 15:18
  • 3
    @corsiKa - wouldn't posting the content of his tweets violate a "be nice" rule? – PoloHoleSet Jul 31 '17 at 15:23
28

Can he directly attack their pay check as members of Congress? No. It is not within the president's enumerated powers to confiscate, redirect, or withhold their pay check.

Can he engage the agencies of the Executive department to damage them in their home state? Yes. Just look at the threats he made against Sen. Lisa Murkowski following her vote. Threats ranged from delaying Federal Projects in their state, to stalling oil drilling.

Can he make it hard for them to remain in congress? Yes. He has threatened Representative Sanford of South Carolina, and others, with supporting a primary challenger against them. He made a thinly veiled threat against Senator Dean Heller of Nevada, while he was sitting beside him.

Can he affect the funding provided by the Republican Party, Congressional Leadership Fund, et al? Not really, but his output can chill the waters.

  • 1
    "Can he affect the funding" - that depends on how much influence (direct or indirect) he has on the leadership. – user4012 Jul 30 '17 at 0:37
  • Can he affect the funding provided by the Republican Party, Congressional Leadership Fund, et al? Not really, but his output can chill the waters. While this is technically correct, I think you are vastly understating the influence of the presidency on his own political party. If Trump was to make a stink to the GOP leaders it realistically would have implications to the funding. – David Grinberg Jul 30 '17 at 14:29
  • 6
    I'm not sure the threats he's made should be considered credible simply because he made them, as this answer seems to imply. ("Can he ...? Yes. He has threatened..." as opposed to "Can he ...? Yes. POTUS can do X according to Y which will lead to Z.") – NotThatGuy Jul 30 '17 at 14:56
  • The trouble with threats like the ones against Murkowski is that a significant part of the electorate probably approves of stalling those projects. – jamesqf Jul 30 '17 at 17:27
  • Is it legal to threaten or to withhold federal spending projects as a matter of overt, stated political retaliation or to strong-arm votes? I'm pretty sure not. – PoloHoleSet Jul 31 '17 at 15:02
25

First, a bit of background about how Congress gets its health care. Members of Congress and their staff used to receive their health insurance through the Federal Employees Health Benefits program, like many other government employees (this is all laid out in CRS report R43194 if you have some strange burning desire to know even more about lawmakers' health plans). Like many who receive health insurance through their jobs in the US, a significant portion of the premiums were paid for by the federal government (the "employer contribution"). One provision of the ACA (Obamacare) changed that by requiring Members and certain Congressional staffers to get their health insurance through the ACA's exchanges instead; this was intended to ensure that those in Congress got similar benefits as their constituents, at least in theory (Members also have the Office of the Attending Physician and can receive free outpatient care at military facilities).

When the ACA's exchanges started up, the Office of Personal Management (OPM) created rules to determine how health coverage for Members of Congress and staff would work. These individuals can buy special plans on the Washington DC Small Business exchange (DC SHOP), and if they do so, the federal government will make an employer contribution to cover much of the cost (but not more than 75%). They receive their plans through the exchange, but receive a special subsidy, just as their health care plans were subsidized prior to the ACA.

While this arrangement has been decried by some right-wing groups (Heritage Action in particular) as special treatment for Congress, the rule preserved the status quo, where the government paid the majority of premiums, and it allows Congress to hire and retain qualified staff, as other employers where staff are likely to work will usually offer health insurance benefits. Congress receives the same health insurance subsidy as other federal workers.

The rule that provides these subsides to Members of Congress and their staff is an OPM rule, and it's possible that the President could simply direct OPM to rescind it. While nobody knows exactly what his tweet means (a not uncommon problem), this is the most likely interpretation of "BAILOUTS for Members of Congress will end very soon". This would require Congress to immediately pay the full unsubsidized cost for their insurance, which would certainly unilaterally hurt them financially.

Whether this poses legal problems, perhaps because of the Twenty-seventh Amendment, is a novel question that would have to be addressed, along with the political implications of the President causing Congress to suddenly receive smaller paychecks.


Director of the Office of Management and Budget (OMB) Nick Mulvaney appeared to confirm this is what the President's tweet meant in an interview on CNN this morning, though he didn't answer how this would apply to Congressional staff as well (July 30, 2017):

Look, if Obamacare is hurting people, and it is, then why shouldn't it hurt insurance companies, and more importantly for this discussion, Members of Congress? There is a certain benefit that Members of Congress get as part of an OPM decision from a couple of years ago and I think the President's simply looking at this and going "is this fair?"

[...]

Members of Congress are obliged by law to participate in the exchanges. I did when I was a Member of Congress. But there was also a decision from the Office of Personnel Management a couple years ago that allowed a special exemption to the rules on employer contributions to those plans. So it's not a concept of taking coverage away. The approach is actually obliging Members of Congress to follow the exact law that the folks they govern are following.

  • Good find regarding the OPM rule. I checked the text of the ACA (congress.gov/bill/111th-congress/house-bill/3590/text). It doesn't say the federal government must provide an employer contribution, or must not. – Matthew Flaschen Jul 30 '17 at 8:19
  • It just says, "the only health plans that the Federal Government may make available to Members of Congress and congressional staff [...] shall be health plans that are-- (I) created under this Act (or an amendment made by this Act); or (II) offered through an Exchange established under this Act (or an amendment made by this Act)." – Matthew Flaschen Jul 30 '17 at 8:19
  • 2
    Given that many (but not all) members of Congress are quite wealthy in their own right, they may be less financially dependent on their salaries than he believes, and I suspect that the effect of Trump annoying them like this may not work out quite as he envisions it. My take on it is that he thinks this will cause them all to snap to attention, say "Yessir, Mr. President Trump, sir!", and do his bidding. I think that it's much more likely that their response will be "Really? You're done. End of story". – Bob Jarvis Jul 30 '17 at 20:19
  • @BobJarvis Counterpoint: Virtually every bill they've cobbled together to try to repeal during this saga has at some point included a provision that makes the repeal not apply to them (and their aides). So if they will go out of their way to specifically legislate protections for themselves to maintain their healthcare plans and subsidies, it seems like threatening to take it away by executive action is a legitimate threat to them after all. That it threatens their staff is of particular importance. – zibadawa timmy Jul 30 '17 at 23:28
  • 1
    @zibadawatimmy In fairness (sigh), my understanding is that a provision that would have changed health insurance for Congress would have been viewed as purely regulatory and not something that could be passed with 50 votes in the Senate under reconciliation. Of course, there would be nothing stopping them from passing a separate bill to ensure they didn't exempt themselves. But what would that mean anyway? Even if they repealed the ACA and put everything back to how it was in 2009, they'd be getting the same subsidies to buy insurance. – Zach Lipton Jul 31 '17 at 0:28
13

Apparently Health and Human Services makes the payments for Congressional health insurance. So it is possible that they may be able to stop making those payments (and this seems to be what he meant).

Note that it is not constitutionally possible to change Congressional compensation during a Congress (currently in the 2017-2018 Congress). The twenty-seventh amendment says:

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

Such a move might not survive judicial scrutiny. I.e. the administration may be required to make such payments and have no discretion to withhold them. There are also constitutional questions about unilateral action against members of Congress in general.

  • 1
    Thing is, it wouldn't be a law that's varying their compensation. It's an executive action. These are legally distinct things. The 27th was specifically meant to stop congressmen from voting to give themselves a raise and then immediately benefiting. So if it doesn't survive judicial scrutiny I imagine it wouldn't involve the 27th by the time it got through the Supreme Court. – zibadawa timmy Jul 30 '17 at 19:59
  • By that logic, redistricting commissions are unconstitutional, as the constitution explicitly gives the redistricting power to state legislatures. Yet the Supreme Court rejected that argument. It's possible that they might allow that argument here, but it is far more likely that they will be consistent with first amendment, etc. jurisprudence and interpret "no law" as meaning no government action against the general class. Otherwise Trump could ban flag burning by executive order. Hey, it's not a law, right? – Brythan Jul 30 '17 at 22:46
  • Actually, if you read the decisions on that case, the legal argument was that Supreme Court precedent meant "Legislature" is more broadly interpreted as the full corpus of legislative power. Which includes, by Arizona's constitution, voter approved acts and referendums. Ergo the provision in the clause that the state legislatures can alter the rules as they desire was satisfied. Now that you mention it specifically, I think you may be right that existing precedents would suggest the 27th amendment is applicable, after all, though. – zibadawa timmy Jul 30 '17 at 23:23

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.