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(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.

Go deeper

48 mins ago - World

Brazil senators vote to recommend criminal charges for Bolsonaro

Brazilian senators vote on probe into President Bolsonaro's handling of pandemic. Photo: Gustavo Minas/Bloomberg via Getty Images

A Brazilian Senate committee Tuesday voted to approve a report recommending President Jair Bolsonaro be charged with a raft of criminal indictments, including crimes against humanity over his response to the COVID-19 pandemic, per AP.

Why it matters: Bolsonaro has become the face of a right-wing approach to the pandemic that includes repudiating vaccines and masks and resisting lockdowns and other mitigation measures. The Senate report holds him personally responsible for half of the country's 600,000 deaths.

Former Georgetown tennis coach pleads guilty to accepting admissions bribes

Gordon Ernst (left) former head tennis coach at Georgetown, outside a courthouse in Boston in 2019. Photo: Jessica Rinaldi/The Boston Globe via Getty Images

A former Georgetown University head tennis coach has pleaded guilty Tuesday to bribery charges related to facilitating the admission of prospective applicants.

Why it matters: Gordon Ernst solicited and accepted bribes from William Singer, ringleader of the cheating scheme uncovered by Operation Varsity Blues, and families in exchange for helping prospective applicants get into Georgetown as student athletes, according to the Justice Department.

4 hours ago - Health

CDC says some immunocompromised people can get fourth COVID shot

Photo: Noriko Hayashi/Bloomberg via Getty Images

The Centers for Disease Control and Prevention said in updated guidelines Tuesday that some immunocompromised people who have received either Pfizer or Moderna's COVID-19 vaccines will be able to get a fourth shot.

Details: People over 18 who are "moderately to severely immunocompromised" and have received three doses of an mRNA vaccine may get a fourth shot (of either the Pfizer, Moderna, or Johnson & Johnson vaccines) at least six months after getting their third Pfizer or Moderna dose, per the CDC.

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