Republicans Prepare Challenges to Obamacare (Audio)

health insurance. So that is why we're gonna do is do it as well and as fast as we can, but make sure that the transition um does not pull the rug out from other people. Further complicating matters is a lawsuit filed in teen by House Republicans that claims the Obama administration has been making unauthorized payments to insurance companies. Republicans won before a federal trial judge in the cases on appeal. Now, the dispute is the focus of courthouse

wrangling that could affect how repeal of Obamacare happens. With us today. To talk about the litigation and its impact on the potential repeal of Obamacare is Abby Gluck, a professor at Yale Law School, and Abigail Mindcreef, a professor at Boston University's School of Law. They're joining us on the Spectrum Enterprise phone line Spectrum Spectrum Enterprise nationwide fiber based network and I T infrastructure solutions. Abby Gluck. Uh, first of all, we'll try to keep the two heavy

straight here. Uh. This is a a complicated case. Complicated stuff here, Let's just start by talking about the underlying case. What is it that the House Republicans set in their lawsuit that the Obama administration was doing wrong? Okay, great, so House versus Burwell is a challenge to what are the call the cost sharing reductions provided under the Affordable Care Act. Those are payments to insurers that in turns translate to UM lower deductibles and co pays uh for

individual Americans who have insurance policies. And a couple of years ago, the House filled the lawsuit saying that the funds were not properly appropriated in the Statue of whe Thebama administration to actually be paying those uh cost young reductions.

That's what the case is about, the small level. But it's important to also understand that the case is also about a huge legal principle that has nothing to do with the Affordable Care Act, and that's the ability of one House of Congress to sue the President for his implementation of the law. House versus Burwell as an unprecedented victory for the House of Representatives on that point. There's never been a successful challenge UM on that point before.

So the case is very important regardless of what happens to the Affordable Care Act, abigail. So take us through the procedural impact of the case until now. Just tell us what's happened procedurally, so so precedually so far where we are is that the district court granted an injunction against the pain of cause and subsidies. First, as as Abby Gluck said, UM, the district Court ruled that the House had standated challenge the Obamacare aspect of the case.

There was another aspect of the case where they lost their UH, their argument understanding. So they were granted standing. And then they won on the merits UM and one an injunction against the payment of cast sharing subsidies, the district court having ruled that the funds were not in

fact appropriated UM and UH. And then they stayed, the District Court stayed, the UH stayed the order pending the appeal and UH and we're currently pending before the the federal appeals Court in a DC circuit and UH and the House moved recently to to hold the case in abeyance pending the transition to the Trump administration, arguing that the Trump administration might drop the the appeal, or that the House and the Trump administration might be able to

reach a settlement because with the transition, obviously we would have a different perspective venture in the White House. UH, it might not be interested in pursuing the appeal any further. So the DC Circuit agreed to hold the case in a bay in And now we have some interveneers to UH, individuals from California who are asking to intervene in the litigation to UM to push the DC Circuit to rule on the merit regardless of whether the Trump administration might

be interested in either dismissing or settling the deal. Okay, so we've got a lot lot going on here. Let's put the interveneers to the side for a second, Abbey, collect just talk about what the incoming Trump administration's options might be assuming that the interveneers don't don't complicate their plans. Given that the president elect to said he wants to appeal Obamacare, what might he and what could he do with this lawsuit? Yeah, I mean he's in a really

difficult position. If I were time, I might actually be rooting for the interveners to win. Uh. And this is why, um, if does nothing. Let's say he comes in, he says, Okay, we're gonna drop the appeal. What happens then it means that the House wins. It means the cost sharing payments stop. It means the insurers can't afford to be on the exchanges anymore and they pull out, and you get insurance

market chaos. Right now, you may be saying, Okay, he's going to repeal the Affordable Care Act, but he's not. He's repealing and delaying. So the Affordable Care Act is still going to be operational for the next four years maybe um, which means but it won't be able to function right if he's cost sharing payments stopped, So he's going to have to do what pay the insurers money to keep them on the exchanges and not translate to exactly the same kind of insurance bail out that he's

been criticizing for the last two years. He's been He's put between a rock and a really hard place. That's what I think he should be rooting for the interveners to win because if they win, the cost sharing payments continue and he sort of get out of this jam that the House created when they had an administration that was unfavorable to their position him. Well, Abby Gluck, it's just a fallo up on that is a settlement possible?

Could the administration settle in the way that says we will continue those payments for you know, a certain period of time to have that kind of transition that that Paul Ryan was talking about. Sure, but that's laughable, right, So what's the settlement? A settlement is sure will stay the impact of the injunction as long as what the affordable character is in existence. So that's a fake victory for the House, right. And the reason Trump should not

want that, right. The reason Trump should not want that is that any incoming president should not want the lower court decision to stand because the lower court gives Congress a lot more power to challenge and incoming a president in the court room than it's ever had in history. So it's not really in any administration's interest to let that lower court decisions stand as an initial matter, which

is why it is an incentive to appeal. But any kind of settlement will just acto be translated to what would have been a win for the Obama administration because would mean that the car show reductions will continue as long as the affordable charec DO is in existence. Of course, they can settle it and they can spin it as a victory. With the practical matter, They're just going to be continuing the affordable character as the Obama administration thought

it was drafted in the first place. So the whole thing is sort of an Alice in Wonderland scenario. And Greg, I just want to point out that despite the Alice in Wonderland scenario, the Senate just released a budget resolution to speed Obamacare repeal, so they're starting off with that. But but the Obamacare repeal doesn't have a replacement, right, exactly exactly key over the four years three to four year delay, right, And so I'm not disagreeing with you,

I'm just I'm just stating what just happened. Well, thanks for clarifying that. Our guests are Abigail Mindcreef, who teaches at Boston University School of Law, and Abbey Gluck of Yale Law School. They're joining us on the Spectrum Enterprise phone Line, Spectrum Enterprise Nationwide fiber based network, and I T infrastructure solutions. Abigail Moncrief, Abbey was Abby Gluck was saying that, uh, that the Trump administration might almost be better off if uh, this case went went forward and

the payments weren't cut off. In a sense, they would be losing in terms of their position on Obamacare, but winning in terms of the flexibility they would have. Do you agree with that assessment? Yeah, I mean, I think I think Abby's put it exactly right when she said that the Trump administration is caught between a rock and a hard voice. I think they the Trump administration doesn't

want to look like it's caving on the attack against Obamacare. UM. But at the same time, I don't think any incoming president should say, oh, there's this court order that says that the House of Representatives has standing the challenge anything I do that might plausibly be illegal or against the houses preferred interpretation of the statutory of previsions. So uh,

you know, let's just let that stand. The Trump is the no no incoming presidents, no president should want the House of Representatives to be allowed to challenge the the executive branches interpretation of a statutory provision. So so if I were the administration, regardless of my position on Obamacare, I would say, look, let's fix Obamacare through the legislative process,

not through this lawsuit. Uh. And so I you know, I think I would be inclined to make a big show of yeah, of course we're going to repeal Obambacare, but we're not going to do it for this, uh, through this court case. I think that's how, you know,

they should want to proceed. But by the same token, you know, and the Trump administration wants to work with Bryan and and and the House, and the House brought this lawsuit, so you know, so I don't know what they're gonna do, and I don't know what's best for them, really, Abbey, how is the DC Circuit Court of Appeals likely to rule on this emergency motion to intervene? Well, they ruled last week, but they did you last week because they pushed the time frame up. So what had happened was

and the interveners came in. There have been some papers file that said Okay, basically, let's deal with this after the administration takes office. Um and the interveners came back and said, no, we have reasons for wanting this to happen before, precisely because they're afraid of some settlement that would let the decisions stand while still sort of waking the same harm on the insured. And by this by to one order last week, the d C or for the holidays, the d C Circuit came in and said, okay,

we want the briefing files before the twenties. So they're setting themselves up to actually make the decision before. Uh. We don't know how that's going to come down, but at least it sounds like at least two of the judges on that panel had heard sort of the timing implications that were buried or emphasized in the intervener's briefing, and you know, I thought they were reasonable, and it pushed the cases on a faster time frame than the

House had wanted. Abigail that the judges who ruled in that case, they're the two Democratic appointees, David Tatol and Tree Shrineavasan were the ones who said, uh, you respond to this this emergency motion, and Republican appointee Karin Lacraft Henderson said, I disagree. Does this case look like so many other Obamacare cases where we're gonna see a partisan divide on on the Court of Appeals? I mean, it sure looks like it so far. Um. I'm I'm surprised

by it by the two to one split. Um. I would think that that some of the big structural issues in this case would be um interesting in a kind of nonpartisan way. Um. But but it sure looks like it's splitting along your party lines so far. Um. And is the upshot of that, given given that this is a democratic a court with more democratic appointees, that that it's likely that the court might let the appeal go forward? Sure? Yeah, I mean I think I think that's exactly right. I.

Um yeah, I can't. I can't imagine that. You know, it is a heavily democratic court. Um. And and so if it can, if it maintains this part of the events, and I think that's good news for the interveners. Okay, that means we're gonna have more to talk about here on Bloomberg Law. As this case goes forward, we will keep an eye on it and talk more with our guest today, uh Abby Gluck of Yale Law School and

Abigail Mindcrief of Boston University School of Law. Thank you so much for being on Bloomberg Law to talk about this case that UH could make the complicated repeal of Obamacare even more complicated