House v. Burwell

[BoSoxGal]

Pending before the U.S. Court of Appeals for the D.C. Circuit; if Trump directs the DOJ not to defend this case, he could cripple Obamacare.

My question for the smarter lawyers on the board: is there any circumstance by which a third party could intervene to defend the standing issue - which is apparently quite strong for the administration - should Trump and Sessions refuse to do it?

Is it possible for the former secretaries actually named in the suit to act to defend it, or did they lose that right once their terms of service expired?

It's such a weird thing, Congress suing the Executive branch - I admit to having no clue what the rules would be.

Missing Andrew D . . .

[ex-khobar Andy]

I don't know enough about the issues to comment directly, but I think it is clear that since the DOA of the AHCA today, the Trumpers will have to decide whether to make the best of it or do their worst to sabotage Obamacare. Of course if their motive is to do the best for Americans to ensure the healthiest outcome, they would remove some of the uncertainty which inhibits the insurance companies. Don't hold your breath on that. My understanding of the original case was that the SCOTUS attempted to discern what that Act was trying to achieve and make their determination accordingly. The Scalia acolytes wanted merely to act in accordance with an interpretation of what was written regardless of the effect on the people who needed it.

[BoSoxGal]

This lawsuit is about the funding mechanisms and employer mandate which Obama delayed implementing and Congress claimed he'd exceeded his Constitutional authority. The House sued rather than pursuing impeachment, because of which the appeals court could find the House lacks standing - it's a problem with a political solution rather than being appropriate for the courts.

The House already won on the merits at district court level, which is why it's on appeal. But if the administration won't defend, i.e., won't litigate further, then the district court ruling stands and the funding mechanisms could be strangled by Congress.

So my concern isn't so much about the interpretation of the law by the court, but whether there is a mechanism by which to advance the administration's strong standing argument if DOJ won't at direction of Trump. This is a way he could destroy ACA without repealing/replacing. I don't think he has any concerns for the best interests of even the people who voted for him.

[ex-khobar Andy]

Ok thanks BSG - I was confusing this with King vs Burwell.

[Lord Jim]

I remember there was a time when Obama would change implementation dates for various aspects of Obamacare pretty much at will, but since it has all now been implemented, why isn't this moot?

[BoSoxGal]

The payments for cost-sharing subsidies from the government to the private insurers are an ongoing concern, so that isn't moot.

I found this online, and am now just as sick at heart as I was before the AHCA bill was pulled. It seems Trump has the tools to destroy the ACA without the legislative process.

Current Status

According to Timothy Jost (1.7.16), “Given the importance of the constitutional issues raised by the case and the fact that Collyer admitted that her decision was unprecedented, the government asked her to allow an interlocutory appeal to the U.S. Court of Appeals for the District of Columbia Circuit to decide the constitutional jurisdictional question before she examined the merits of the case.

On October 19, 2015, Collyer denied their request, holding that the case would proceed more quickly if she decided the merits first.” She will decide the case in spring 2016. “If she decides against the administration, her decision will certainly be appealed, perhaps ultimately to the Supreme Court.”

According to Sara Rosenbaum, it “could take years” for the D.C. Circuit Court of Appeals, and ultimately the United States Supreme Court (should it choose to do so), to review Collyer’s decision.
According to Nicholas Bagley (2.12.16), “The government has requested oral argument in the case, but a hearing date has yet to be scheduled.” The court will issue an opinion “presumably about a month or so after a hearing date.”

On May 12, 2016 the district court in Washington, D.C., handed the House of Representatives a victory. The court agreed with the House that the Obama administration lacks the power to make the challenged payments to health plans. The court also reaffirmed its earlier decision holding that the House had standing to sue the administration. Collyer stayed implementation of the ruling. The administration plans to appeal the ruling.
Impact of the 2016 Presidential Election

According to the Associated Press (11.16.16), the election of Donald J. Trump means his administration could clear the lawsuit from the dockets. “Trump, who has vowed to start taking apart the health care law on the first day of his administration, has a tailor-made opportunity: His administration could simply agree with the House that the payments are unconstitutional, and stop contesting the lawsuit. ‘The Trump administration could immediately turn off the tap for making cost-sharing payments,’ said Mark Regan, legal director of the Disability Law Center of Alaska in Anchorage, and a defender of the law. ‘Turning the payments off would come close to destroying the market.’ Insurers could be stuck with massive losses because they would still have a legal obligation to cover patients’ out-of-pocket costs, but would get no reimbursement from the government.”

Nicholas Bagley suggests (11.10.16) that “without an appropriation, it’s unconstitutional to pay money from the U.S. Treasury. Not only is it unconstitutional, it’s a crime under the Anti-Deficiency Act. Stopping the payments is arguably the only constitutionally available course of action. But I wonder if it’s that simple… President Trump may be able to keep making cost-sharing payments until Congress can devise a repeal-and-replace plan, assuming that happens relatively quickly. I don’t pretend for a moment that the question is free from doubt—these are deep constitutional waters—but it seems to me that there’s a plausible argument for remedial flexibility. Whether President Trump will use that flexibility is another question altogether.”

According to JDSupra (11.23.16) “in its motion filed on November 21st, the House has asked the court to pend the case until February 21st, to give the incoming Trump administration the opportunity to decide whether to amend, repeal or replace the ACA. According to the motion, representatives of the House and the Trump transition team are in discussions regarding options that could resolve the matter. The House motion notes that the Obama administration opposes the request for a hold.”

Law professor Josh Blackman notes (11.23.16) that HHS, in its opposition brief, argues that there is no indication that the new administration will take a different position with respect to the House of Representatives having standing to sue the President… “But I think HHS’s motion misses the obvious: the Trump Administration will likely cut off the payments, which moots the case. Standing is irrelevant. There is no need to litigate this further. Specifically, even if these payments are shut off, insurances companies (as I understand it) are not allowed to increase costs charged to customers. The insurers would then need to sue in the Court of Claims for the unpaid money. Stay tuned if the judgment fund is amended to prohibit payment of such bills. Trump, who apparent loves stiffing contractors he doesn’t like, may find this approach all-too-appealing.”

On January 13, 2017, Timothy Jost reported that “on December 20, 2016, two beneficiaries of reduced cost sharing under the Affordable Care Act (ACA) asked the D.C. Circuit court of appeals to allow them to intervene in House v. Burwell… On January 12, 2017, the D.C. Circuit denied the motion to intervene in a one paragraph unsigned order stating that the requirements for intervening on appeal had not been met, with no further explanation. This litigation is now in the hands of the Trump administration and the House. It is clear that a settlement that would immediately terminate the cost-sharing reduction payments would very quickly unravel the individual insurance markets. Insurers would in all likelihood withdraw from the marketplaces, and from the entire individual market, as quickly as they could and as many as 20 million Americans would be left without coverage. Those who will lose their coverage will now not be represented in court to plead for the court’s protection.”

The Hill (2.21.17) reported that “Republican lawmakers and the Department of Justice have asked for more time Tuesday to decide whether they want to move forward in the House’s lawsuit over ObamaCare’s cost-sharing subsidies. The House and the DOJ made the request in a joint motion Tuesday… The motion Tuesday grants the House and the DOJ until May 22 to file a status report with the court and establishes 90-day deadlines after that. The House has asked for delays in the proceedings after Trump won the election in November.”

Nicholas Bagley (2.27.17) notes that a House ACA replacement bill, leaked in February 2017, doesn’t address the CSRs. “More immediately to the point, the leaked bill doesn’t appropriate money for the 2018 and 2019 cost-sharing reductions. At the same time, the district court in House v. Burwell held (correctly) that there’s no appropriation to keep making those payments. The court’s injunction has been stayed pending appeal to the D.C. Circuit, where the case is being held in abeyance. But nothing prevents the Trump administration from dismissing that appeal and ending the cost-sharing payments. Were it to do so, the exchanges would collapse immediately. Does Congress plan on doing anything to prevent that possibility?”

http://ushealthpolicygateway.com/vii-ke ... -columbia/