Jun 2, 2017

Ryan's ACA lawsuit is still alive — and a problem for Trump

(AP Photo/Evan Vucci)

The White House and congressional Republicans are on the same page when it comes to the Affordable Care Act's cost-sharing subsidies: keep the money flowing for a while. But there's a problem: A federal judge has said that page is unconstitutional. And while everyone's agreeing to just not worry about that right now, it's still the law of the land — and it can't be ignored forever.

The Trump administration is providing the ACA subsidies without an appropriation from Congress. That's exactly the same arrangement the Obama administration employed, House Republicans challenged in court, and a federal judge ruled unconstitutional. "The administration is pretty overtly acting contrary to law," says Nicholas Bagley, a University of Michigan law professor and an expert on ACA litigation.

The problem: Even if House Republicans would like to give Trump a pass, that's not so easy now that the courts are involved. They can't ask the judge to just forget about that whole unconstitutional-implementation thing.

So both sides are trying to avoid the legal controversy instead of resolving it. The courts have gone along with that strategy so far, granting delays a few months at a time while the two parties try to reach an agreement. The courts would likely continue to grant those delays for a long time, Bagley said, letting Trump and the House avoid a showdown.

Insurers, though, don't just want the subsidies to keep flowing — they want predictability. And kicking the can down the road 90 days at a time is not predictability.

Why it matters: The uncertainty around this case is a huge driver of the premium increases insurers are seeking this year, and with no real end in sight, they're unlikely to feel much more confident about the ACA's stability.

For future reference: This is also, as Bagley sees it, the danger of elevating political disputes to the courts. You can change your talking points based on the president's party affiliation, but once you've persuaded a judge that something was unconstitutional, that's what sticks — even if you might prefer to change your mind.

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