HHS Opposes Motion to Hold House v. Burwell in Abeyance

November 23rd, 2016

On Monday, the House of Representatives moved to hold its challenge to the payment of ACA subsidies, in light of the new election. Today, HHS filed its opposition. HHS 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.

These principles are unchanged by the recent election. The House does not suggest that the incoming Administration would welcome heretofore unprecedented suits by subcomponents of Congress that seek to alter the way the Executive Branch is administering federal law. That principle alone is reason not to halt briefing mid-course.

This is a fascinating point, that many people may lose sight of. The Trump Administration will not be keen to have a Democratic-controlled House sue it anything. Executive branches will always favor narrow conceptions of standing to avoid litigation. 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 a related note, the Obama administration expanded on its decision to agree to a stay in U.S. v. Texas:

In Texas v. United States, No. 14-cv-254 (S.D. Tex.) (discussed at Mot. 4-5), following remand from the Supreme Court, the district court ordered the parties to meet and confer about how to proceed with the next stage of litigation. The three parties jointly agreed that because the case was at a “unique juncture” and “[g]iven the change in Administration,” a short stay was appropriate before deciding on the next steps. In this case, however, the next step is plain:to complete the already commenced briefing of this appeal.

In contrast, here, the cost-sharing subsidies are currently being paid out, and a disruption would put insurance companies at risk.

And the statutory provisions that require subsidy payments to make health coverage affordable for millions of Americans and that reimburse insurers for these vast expenses remain the law of the land. The district court’s decision thus threatens to “create untenable business uncertainty” for insurers and significant harm to consumers.

This will likely be the Obama administration’s last filing in this case. The reply brief is due January 19. Though I suppose they can file something on the eve of inauguration–which may be withdrawn the following day.