Obamacare, the False Claims Act, and the Anti-Deficiency Act

November 9th, 2016

In Unraveled, I discussed at some length the billions of dollars of illegal payments made by the Obama administration to insurance companies. So long as Secretary Sebelius and Burwell were in charge, those payments were given full support. No longer, under a Carson HHS. One lingering question that has been on my mind for some time is whether the combination of False Claims Act and the Anti-Deficiency Act will be used to bring light to those illegal payments.

First, Attorney General Giuliani (?) could bring False Claims Act challenges against the insurance companies that received money that was never appropriated, and ought to have been deposited in the U.S. Treasury.  These are clear-cut cases where the payments were illegal–the government’s only meaningful defense was standing. With these qui tam actions, payments can be clawed back, on top of damages. The Boards of Directors of these insurance companies should be very scared–the gravy train is ending.

Second, members of the Obama administration who authorized those payments–often in the face of opposition from career bureaucrats in the IRS–can be subject to anti-deficiency act criminal prosecutions. Recall this deposition from the IRS’s Chief Risk Officer:

Fisher joked, “I know it’s hard to believe for some people,” but “this was not about health care” for him. (p. 34). It was “about appropriations law.” (p. 34). He noted that they take “very seriously” the Antideficiency Act,” which imposes “criminal penalties” for spending money without proper authorization. (p. 34). “We wanted to make sure that these payments were not going to be in violation of appropriation law and the Antideficiency Act,” Fisher said. “That’s what this was all about.” (p. 34).

The reckless manner in which the Obama administration approached appropriations law is stunning.  It’s not hard to make these cases.

The final book in the trilogy, Undone, is coming together much quicker than I anticipated.