As the nation weighs who should next be trusted with the presidency, the current occupant of the White House seems poised to provide yet another reminder of the importance of maintaining checks on executive power. President Obama’s Department of Health and Human Services has in recent weeks floated the possibility of the federal government using a backdoor method to funnel money to insurers losing money through Obamacare, even though Congress has twice voted to block such payments.

The current controversy involves a program within Obamacare, known as risk corridors, that was intended to cushion the financial blow to insurers participating in the law’s exchanges. The program was supposed to use money collected from insurers who had lower than expected medical losses to help subsidize insurers that had greater than expected losses. The idea was to protect insurers as they figured out how to manage a new population of enrollees given that they are now obliged to offer insurance to anybody who applies, regardless of their health.

But Obamacare patients turned out to be much older and sicker than expected, so insurers suffered massive losses. They had accumulated $2.87 billion in claims to the risk corridors program by 2014. Because so few insurers actually did better than expected, the program only collected $362 million, creating a massive shortfall. HHS announced that all money collected for 2015 will also have to go toward 2014 claims.

Congress, for two consecutive years, voted to prevent HHS from using any other money to pay insurers. This prompted insurers to sue the federal government for full payment of their claims. Obama, facing the prospect of his signature legislation collapsing as insurers flee the program, is desperate to keep them happy and prevent a stampede for the exits.

Here’s where the latest twist comes in.

In a guidance issued earlier this month, HHS wrote, “We know that a number of issuers have sued in federal court seeking to obtain the risk corridors amounts that have not been paid to date. As in any lawsuit, the Department of Justice is vigorously defending those claims on behalf of the United States. However, as in all cases where there is litigation risk, we are open to discussing resolution of those claims. We are willing to begin such discussions at any time.”

This raises alarms that HHS may be preparing to settle claims and make payments out of the government’s Judgment Fund without congressional approval. That’s the same fund within the U.S. Treasury that Obama used to go around Congress to make $1.7 billion in cash payments to Iran as part of a deal to secure release of hostages.

A January memo from the Congressional Research Service suggested that the legal judgment fund did not seem to be available to make payments stemming from the risk corridors litigation. The CRS cited a 1998 Government Accountability Office report that said, “The Judgment Fund does not become available simply because an agency may have insufficient funds at a particular time to pay a judgment … If the agency lacks sufficient funds to pay a judgment, but possesses statutory authority to make the payment, its recourse is to seek funds from Congress.”

Republicans in Congress are worried and want to block this end around run by Obama. The House Energy and Commerce Committee pressed Andy Slavitt, acting administrator of the Center for Medicare and Medicaid Services, during testimony and has demanded more answers from HHS. Republican Sens. Mike Lee, John Barrasso, Marco Rubio and Ben Sasse, wrote to HHS and Attorney Gen. Loretta Lynch that, “it would be inappropriate for the Judgment Fund to be used to settle any litigation stemming from the risk corridor program. Accordingly, we write to ascertain specifically how CMS intends to go about seeking ‘resolution of those claims’ so that federal law is not violated.”

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Rep. Robert Pittenger, R-N.C., sent a letter with 45 co-signers, warning HHS: “Should the administration seek to make settlements in any pending lawsuits regarding risk corridors payments, we remain committed to exhausting all legislative and judicial options to ensure the power of the purse vested in Congress under the Constitution is respected and maintained.”

This comes as the Government Accountability Office issued an opinion on Thursday that concluded the administration didn’t have the authority to divert $3.5 billion from the Treasury Department to Obamacare insurers as part of another program within Obamacare.

The looming and illegal bailout of Obamacare is the latest of many reasons why those Republicans who plan not to vote for Donald Trump should nevertheless vote for Republicans in down-ballot races. It is vital that the GOP retain control of Capitol Hill as a check on the power of the executive branch, that has abused its powers for the past eight years. If low turnout hands the Senate over to Democrats, an Obamacare bailout seems likely to be an early and unwelcome consequence.

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