Just as the Dems “deemed” it passed, why don’t the Republicans deem it de-funded?
FROM SENATOR TOM COBURN’s WEBSITE:
CRS: “Government Shutdown” Does Not Shut Down Obamacare
On July 29, 2013 the Congressional Research Service (CRS)
issued a memo to Dr. Coburn at his request for information on “the potential effects of a funding lapse and
related government shutdown on implementation of the Patient Protection and Affordable Care Act.” The memo specifically addressed several questions he posed.
The memo reveals that if government were shut down, funding for Obamacare would still continue. In other words, shutting down the federal government does not shut down Obamacare.
This document is a summary of direct quotes from that memo.
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The Administration Can “Exercise Some Discretion” Implementing Obamacare “In the context of a prospective or actual lapse in appropriations and government
shutdown, several presidential administrations have interpreted the nature and scope of restrictions on government activities during a shutdown and any related exceptions.
These interpretations….identified specific exceptions that govern federal agency decisions regarding which operations may continue during a government shutdown under certain circumstances. These exceptions arguably have been read broadly, resulting in a situation where executive agencies may exercise some discretion. It is important to note that past views and practice in the executive branch do not
necessarily constrain or guide what may happen in the event of a future funding lapse and shutdown.”
The Obama Administration Already Had Obamacare Funding Plans Online “The near-impasses [in FY2011 and FY2012] also resulted in executive branch agencies posting a substantial amount of information on the Internet about their plans
for a potential shutdown, including information about excepted and non-excepted personnel and activities. These plans might provide insight into questions of whether
government activities at specific agencies and programs, and in specific situations, would continue or cease….”
A “Government Shutdown” Does Not Cause All Government Functions To Cease“A funding gap also may occur any time that interim funding in a continuing resolution
(CR) expires and another CR or regular appropriations bill is not enacted immediately thereafter. When a funding gap occurs, the federal government begins a “shutdown” of
the affected activities, including the furlough of certain personnel and curtailment of agency activities and services. There are some exceptions to this process, however, as
explained further…..In 1980 and 1981, [sic], U.S. Attorney General Benjamin R. Civiletti issued two opinions that more strictly interpreted the Antideficiency Act in the context of a funding gap, along with the law’s exceptions.
There Are Four Types of Funding That Do Not Cease During Shutdown.The GAO has summarized the 1981 Civiletti opinion as identifying four sub-types of “authorized by law” exceptions. Those include:
1. “Activities funded with appropriations of budget authority that do not expire at the end of one fiscal year, such as multiple-year and no-year appropriations”
2. “Activities authorized by statutes that expressly permit obligations in advance of appropriations, such as contract authority.”
3. “Activities ‘authorized by necessary implication from the specific terms of duties that have been imposed on, or of authorities that have been invested in, the agency.’ The Civiletti opinion illustrated this abstract concept by citing the situation when benefit payments under an entitlement program are funded from other-than-one-year appropriations…but the salaries of personnel who
administer the program are funded by one-year appropriations … the Attorney General offered the view that continued availability of money for benefit payments would necessarily imply that continued administration of the program is
authorized by law at some level and therefore excepted from the Antideficiency Act.”
4. Obligations “necessarily incident to presidential initiatives undertaken within his constitutional powers,” such as the power to grant pardons and reprieves.
“Substantial” Obamacare Implementation Would Continue In a Shutdown
“It appears that substantial ACA implementation might continue during a lapse in annual appropriations that resulted in a temporary government shutdown for two reasons.
The first is that the federal government will be able to
rely on sources of funding other than annual discretionary appropriations to support implementation activities, including multiple-year and no-year discretionary funds still available for obligation as well as mandatory funds…..The HHS shutdown contingency plan that was
prepared in anticipation of a possible government shutdown in FY2012 indicated that ACA implementation activities at CMS would continue because of the mandatory funding provided in the law.”
What About Obamacare Implementation Funding From Other Sources?
“The Administration’s FY2014 budget requested $1.4 billion in new funds for CMS Program Management for ongoing ACA implementation activities, plus an additional $400 million for the IRS to administer ACA’s tax-related provisions, including the premium tax credits. In the event that congressional appropriators do not provide any of
these funds, or in the event of a temporary lapse in discretionary appropriations that results in a government shutdown, it seems likely that the Administration will continue to rely on alternative sources of funding to support ACA implementation activities.”
Obamacare’s Subsidies for Health Coverage Would Continue During a Shutdown“Like many other tax credits, the monies used to fund such provisions are permanently appropriated outside of the annual appropriations process. Therefore, the funds for such credits would continue to be available via this permanent appropriation during a government shutdown caused by a lapse in annual appropriations….it may be likely that at least some of the eligibility and processing functions associated with payment of this credit might continue during a government shutdown, even if the salaries of the federal employees who would be making those determinations are paid from annual appropriations that have lapsed. This is because the IRS could rely upon that portion of the Civiletti opinion which indicates that continued availability of money for benefit payments would necessarily imply that continued administration of the program is
authorized by law despite the lapse in discretionary funding.”
Even Past Shutdown Experience Suggests Subsidies Would Still Be Operational
The experience of the Social Security Administration (SSA) during the two FY1996 shutdowns illustrates what might happen over a period of time in these situations…..SSA had not retained staff to, among other things, respond to “telephone calls from customers needing a Social Security card to work or who needed to change the address where their check should be mailed for the following month.” SSA then
advised OMB that the agency would need to retain 49,715 additional employees for direct service work, including the processing of new claims for Social Security benefits….. The SSA workers described above were determined to be excepted based on the “necessary implication” standard enunciated in the Civiletti opinion.
Consequently, it may be reasonable to infer that any similar benefit programs under the ACA with a separate funding stream could also be considered excepted functions under
the ‘necessary implication’ doctrine in the event of a lapse in annual appropriations.”
The IRS Could Still Continue To Collect Obamacare’s Taxes During a Shutdown
In its government shutdown Contingency Plan from November 16, 2011, the IRS cited memoranda from OMBand the General Counsel of the Treasury for the proposition that incoming tax revenue constitutes property in the context of this exception to the Antideficiency Act. As a result, that contingency plan indicated that ‘during a lapse in
appropriations, the Service may continue processing tax returns to insure the protection of those returns that contain remittances.’…… Importantly, it should be noted that a lapse in funding does not automatically result in the suspension of filing and payment deadlines imposed by the Internal Revenue Code (IRC). While some enforcement and
collection activities may be unavailable during a government shutdown, those authorities would resume if funding is subsequently provided for the IRS, and any outstanding tax liabilities accrued during that time period may be subject to enforcement and collection at that time.”
No, the Dems did not use reconciliation or deemed it passed. They passed it the Senate then in the House.
Just as the spying on Americans, Obamacare has been going ahead full steam without much fanfare from the media since before its inception...
I imagine it is so fully entrenched within the gov't departments and bureaucracies that it was designed to have provisions within it to prevent it from ever being defunded...