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In US House of Representatives v Burwell (pdf), US District Judge Rosemary M Collyer has today upheld the challenge of the House of Representatives to a portion of the Patient Protection and Affordable Care Act (ObamaCare), ruling that the government had wrongly spent billions of dollars in the past two years to reimburse insurance companies for providing health coverage at lower costs to low and moderate income consumers. There is no mention in the judgment about the recovery of the unauthorised reimbursements, but the case plainly raises that question, which I have been discussing in a series of posts (I, II, III, IV, V, & V(a)) on this blog. There is another post to come in the series, and an addendum – but the implications on Burwell are too big to postpone.

The judge set up the issue in this way:

This case involves two sections of the Affordable Care Act: 1401 and 1402. Section 1401 provides tax credits to make insurance premiums more affordable, while Section 1402 reduces deductibles, co-pays, and other means of “cost sharing” by insurers. Section 1401 was funded by adding it to a preexisting list of permanently-appropriated tax credits and refunds.

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From today’s Sunday Independent comes a story by Maeve Sheehan which has many echoes of an earlier story that Department of Agriculture overpayments of €70m in EU grants to farmers would not be recovered. The earlier story prompted my current series of posts (I, II, III, IV, & V) on the recovery of unauthorised State payments. Today’s story goes right to the heart of the issues I have been discussing in that series. It based on a report to the Garda Commissioner in relation to financial control released to the Sunday Independent under freedom of information legislation last week, which found that Gardaí received overpayments totalling more than €1m in pensions and salaries, and that some of these overpayments will have to be written off at the expense of the taxpayer:

Embarrassing gaffe as gardai were ‘overpaid by more than €1.1m’

… The Garda’s internal audit unit put overpayments of salaries and pensions at €1,139,014 at the end of 2014, €184,000 more than in 2013, according to a report obtained by the Sunday Independent. Less than half of the gardai who were overpaid had plans in place to repay it. The force’s internal audit unit concluded: “It is likely that write-off of some of this debt will be required but every effort is being made to recoup as much of this amount as possible.”

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Last month, officials at the Illinois Department of Revenue said that there had been overpayments since 2014 totalling US$168 million to some 6,500 districts across Illinois. The Department says that it’s sensitive to the impact recovering the funds will have on the districts, and it will therefore allow them to repay the money slowly. But repay it they must, unless legislation forgives the debts. It is a stark example of the issues which I have been discussing on this blog in a series of posts on the principles underlying restitution claims made by the Executive. The series was prompted by media reports that the taxpayer has been hit with a €70m bill for overpaid farmers. In my first post in the series, I established the principle associated with Auckland Harbour Board v R [1924] AC 318; [1923] UKPC 92, [1923] NZPC 3 (18 December 1923) [Auckland] and Attorney General v Great Southern and Western Railway Company of Ireland [1925] AC 754 (HL) [GSWR]. This principle has two limbs: first, State payments must be authorised (this is the authorisation limb of the principle, which I discussed in my second and third posts); and second, unauthorised State payments can be recovered if they can be identified (this is the restitution limb of the principle, which I discussed in my fourth post).…

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