It’s untouchable.  That’s the treatment Congress is giving to the $23.6 billion being spent right now to implement ObamaCare. 

This $23.6 billion is the current portion of the $105.5 billion appropriated by the last Congress to fund ObamaCare.  The remainder automatically becomes available between now and FY2019.  Think of that part as post-dated checks for the other $81.9 billion.

Separately, an additional $115 billion was authorized for further appropriation to ObamaCare—money that the current Congress fortunately is unlikely to provide.  But they’ve not acted to block the $105.5 billion already appropriated to cover a 10-year span (FY10 through FY19).

The most pressing question, however, is whether the current portion—the $23.6 billion—will be rescinded as part of the spending reductions being pursued in Congress.

Despite campaign promises to defund ObamaCare, it isn’t being done.  Why not?

The excuses are flimsy.  Claims that it “cannot” be done under House rules are wrong and misleading.  The House has constitutional authority (Article I, Section 5, Clause 2) to package legislation however it wishes.  Self-imposed rules of the House are likewise no excuse for not defunding ObamaCare.  Those same rules were waived repeatedly to permit defunding of other programs in the series of Continuing Resolutions (CRs) that are being used to keep the full federal government open.

For the first full-year CR, the relevant rule (House Rule XXI) was waived to permit 123 previous appropriations to be rescinded.  But ObamaCare funding was not touched.  Perhaps doing the same thing for the 124th time was considered going too far?

The House waived the rules again for the second two-week CR.  But ObamaCare funding still went untouched.

For the latest three-week CR, the rules were waived once more, and again ObamaCare funding was not touched.

To its credit, the House Energy and Commerce Committee is pushing legislation to eliminate portions of the $81.9 billion to be spent on ObamaCare in future years.  But the committee’s proposal does not seek to block any of the $23.6 billion front-end money flowing into the program already. 

Unfortunately, that bill faces the same fate as the House’s previous (and praiseworthy) legislation to repeal all of ObamaCare outright.  The Senate leadership has no intention of letting the proposal pass.  And even if the Senate approved the bill, President Obama would most certainly veto it.  

This is why the only meaningful method for defunding ObamaCare is to package the spending cuts with must-pass legislation that has other things—like spending—that President Obama and his team desire.  There is no other way to apply political leverage.

Another approach—which likewise would need to be packaged for leverage—is to delay all ObamaCare funds until we have a final decision from the U.S. Supreme Court on the law’s constitutionality.  The 11th Circuit is expediting its handling of the Justice Department’s appeal of Judge Roger Vinson’s landmark ruling that the entire law is unconstitutional.  In the meantime, why does Congress permit tens of billions of taxpayer dollars to be spent to implement a measure that is unconstitutional? 

Calling time-out while the courts decide is the approach taken in the Save Our States bill.  In the House, Representatives Tom Graves (R.-Ga.) and Kevin Brady (R.-Tex.) have filed HR 663 to create this moratorium on implementing ObamaCare.  In the upper chamber, Senators Kay Bailey Hutchison (R.-Tex.) and John Barrasso (R.-Wyo.) have filed the companion version, S 281.

The savings from acting now would certainly be in the billions.  The entire $23.6 billion of current front-end funding has not yet been spent, although the remaining balance has not been determined.

Congress is in recess the week of March 21 to 27.  Many lawmakers will return home.  Some will hold public meetings. It’s an important opportunity for public meetings at which citizens can ask questions.

Perhaps then Congress members can explain why ObamaCare’s funding—especially the $23.6 billion they’re already spending—is being treated as untouchable.

Ernest Istook is a Distinguished Fellow at The Heritage Foundation.