What Is Cruz's Subpoena Threat About?
The faux fight is over the Obamacare subsidies that are at the heart of the King v. Burwell lawsuit. Cruz chairs the Senate Judiciary subcommittee on Oversight, Agency Action, Federal Rights, and Federal Courts, and he's still trying to churn up dust over the rule that made health insurance subsidies available on the federal exchange.
The Treasury Department, not wanting to be drawn in, told Cruz's office that the officials would not be available because the questioning related to the ongoing litigation.
In response, Cruz wrote to Treasury Secretary Jack Lew that he would "pursue other options, including compulsory process" to making Deputy Assistant Secretary for Tax Policy Emily McMahon, Deputy Tax Legislative Counsel for Tax Policy Cameron Arterton, and Assistant Secretary for Tax Policy Mark Mazur appear before his subcommittee. In other words, Cruz was threatening to subpoena the officials to come forward for a good old-fashioned Affordable Care Act bashing.
Why Is The Treasury Department Involved?
Cruz wanted to question the Treasury officials on how the Internal Revenue Service crafted the rules allowing subsidies for those getting health insurance through federal exchanges under Obamacare. The IRS is a part of the Treasury Department.
Cruz wrote in his letter to Treasury:
Our understanding, based on prior congressional oversight efforts, is that these three current federal employees played instrumental roles in the drafting and implementation of PPACA’s exchange subsidy rule. Given the significant questions that remain unanswered about the mechanics of the rulemaking process that led to this rule, their input, and therefore presence and testimony at the hearing, is considered essential.
The Supreme Court ruling in King v. Burwell could greatly damage Obamacare by invalidating the subsidies, leaving 7 million Americans without health insurance.
How did the Treasury Department Respond?
The Treasury Department was unmoved by Cruz's letter. A Treasury spokesman, in response to Cruz, said the department has already cooperated with Congress.
"Tax credits made available through the Affordable Care Act have helped millions of Americans in every state get health insurance coverage," an unnamed spokesman said according to National Journal. "The regulations related to these tax credits are now over three years old—they were proposed in 2011 and finalized in 2012. Treasury has worked cooperatively with Congress to address its interest in the regulations, including by providing letters, briefings, and testimony to Congressional Members and staff. The material provided to Congress describes the process by which the regulations were drafted and approved."
So What Happened At The Hearing?
Despite the no-shows, Cruz wanted the show to go on. Cruz said the absences showed the Obama administration's "contempt for Congress" according to The Dallas Morning News. He added that it was "the height of arrogance."
Most of the seats at the subcommittee were taken, according to National Journal. Once opening statements were done the namecards for the Treasury Department officials were removed from the empty seats and scholars and lawyers stepped in to testify about Obamacare instead.
Republicans praised the hearing while Democrats shrugged it off as a silly publicity stunt and a waste of time.
"I find it unremarkable that the witnesses requested for today did not appear. The administration has ongoing litigation, Sen. Chris Coons (D-DE) said.
What Happens Next?
At the hearing Cruz once again floated issuing subpoenas. Still, it doesn't look like the Obama administration will budge and send the officials to Cruz's committee. Instead what's far more likely is that Cruz will use the entire episode on the 2016 campaign trail to argue that the Obama administration is trying to dodge the big questions on the Obamacare subsidies.
In reality, the next big milestone is likely the outcome of King v. Burwell. Democrats on the committee said that the witnesses could be invited back after the ruling. In the meantime, Coons said, maybe the committee should focus on something else.
"It is my hope that we will move past this political theater and back to the substance of the Judiciary Committee," Coons said according to The Hill.