The straw that broke the camel's back

Congress's ObamaCare Exemption

The President intervenes to give Members and staff a break.

To adapt H.L. Mencken, nobody ever went broke underestimating the cynicism and self-dealing of the American political class. Witness their ad-libbed decision, at the 11th hour and on the basis of no legal authority, to create a special exemption for themselves from the ObamaCare health coverage that everybody else is mandated to buy.

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. Harry Truman enrolled as the first Medicare beneficiary in 1965, and why shouldn't the Members live under the same laws they pass for the rest of the country?

That was the idea when Iowa Senator Chuck Grassley proposed the original good-enough-for-thee, good-enough-for-me amendment in 2009, and the Finance Committee unanimously adopted his rule. Declared Chairman Max Baucus, "I'm very gratified that you have so much confidence in our program that you're going to be able to purchase the new program yourself and I'm confident too that the system will work very well."

Harry Reid revised the Grassley amendment when he rammed through his infamous ObamaCare bill that no one had read for a vote on Christmas eve. But he neglected to include language about what would happen to the premium contributions that the government makes for its employees. Whether it was intentional or not, the fairest reading of the statute as written is that if Democrats thought somebody earning $174,000 didn't deserve an exchange subsidy, then this person doesn't get a subsidy merely because he happens to work in Congress.

But the statute means that about 11,000 Members and Congressional staff will lose the generous coverage they now have as part of the Federal Employees Health Benefits Program (FEHBP). Instead they will get the lower-quality, low-choice "Medicaid Plus" of the exchanges. The Members—annual salary: $174,000—and their better paid aides also wouldn't qualify for ObamaCare subsidies. That means they could be exposed to thousands of dollars a year in out-of-pocket insurance costs.

The result was a full wig out on Capitol Hill, with Members of both parties fretting about "brain drain" as staff face higher health-care costs. Democrats in particular begged the White House for help, claiming the Reid language was merely an unintentional mistake. President Obama told Democrats in a closed-door meeting last week that he would personally moonlight as HR manager and resolve the issue.

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.

How OPM will pull this off is worth watching. Is OPM simply going to cut checks, akin to "cashing out" fringe benefits and increasing wages? Or will OPM cover 75% of the cost of the ObamaCare plan the worker chooses—which could well be costlier than what the feds now contribute via current FEHBP plans? In any case the carve-out for Congress creates a two-tier exchange system, one for the great unwashed and another for the politically connected.

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. For this White House, the law it wrote is a mere suggestion.

The lesson for Americans is that Democrats who passed ObamaCare didn't even understand what they were doing to themselves, much less to everyone else. But you can bet Democrats will never extend to ordinary Americans the same fixes that they are now claiming for themselves. The real class divide in President Obama's America is between the political class and everyone else.

A version of this article appeared August 5, 2013, on page A12 in the U.S. edition of The Wall Street Journal, with the headline: Congress's ObamaCare Exemption.