The Department of Health and Human Services this week responded to a recent letter from House Energy and Commerce Committee Chairman Fred Upton (R-MI) and Senate Budget Committee Ranking Member Jeff Sessions (R-AL) regarding the department’s legal authority to issue payments under the president’s health care law’s risk corridor program. Now, HHS argues that the risk corridor program would be considered a user fee in order to justify its authority to make payments under the program, but risk corridors were not listed as a user fee in President Obama’s own FY 2015 budget, released just a few months ago.

“Chalk up another executive fiat for this imperial presidency,” commented Upton. “This reversal underscores the administration’s disregard toward the law and Congress, and reveals its ‘whatever it takes’ and ‘whatever it costs’ effort to prop up this broken law.”

Sessions commented, “HHS now says that its entire legal authority to make risk corridor payments is predicated on the funds being treated as ‘user fees.’ But as recently as last year, the president’s budget deposited risk corridor payments into the Treasury general fund—conclusive proof that they are not user fees. HHS’ letter serves to confirm our suspicions.”

The very basic premise of the risk-corridor program is that insurers who ended up with a healthier, more profitable mix of insurees would then siphon some of those profits over to insurers who gleaned too many expensive enrollees to stay in the black, just for the first few years of the law until things stabilize — but if hardly any insurers are turning profits and the market doesn’t stabilize, the source of those breezily promised risk-corridor funds remains a murky legal mystery. Imagine that.