Court puts House v. Burwell outcome in hands of GOP

Now that the Circuit Court of Appeals for the District of Columbia has stayed the House v. Burwell case, Donald Trump and congressional Republicans must decide how they want to move forward once they are in power. (Getty/AlexStar)

A federal appeals court has officially put the House v. Burwell case on hold, leaving it up to Donald Trump’s administration to decide how to handle the fight over subsidy payments to health insurers.

President Barack Obama’s administration is currently appealing a judge’s ruling in favor of House Republicans, who are the plaintiffs in the case. They claim that because Congress never appropriated funds to insurers to cover cost-sharing reductions (CSRs), which reduce the out-of-pocket healthcare costs of qualifying Affordable Care Act marketplace enrollees, the payments are unlawful.  

Experts have said a victory for the plaintiffs would massively disrupt the ACA marketplaces, as insurers that must still provide subsidies could hike up premiums in response and cause scores of enrollees to drop out of the exchanges. If Trump chooses to drop the appeal in the case, the results could be similar.

Now that the Circuit Court of Appeals for the District of Columbia has stayed the case, Trump and congressional Republicans must decide how they want to move forward. The court ordered the parties in the case to “file motions to govern further proceedings” by Feb. 21.

It may not be wise to simply dismiss the appeal, as that would create a precedent for a chamber of Congress to sue the president’s administration whenever it disagrees about how to interpret an appropriations statute, Washington and Lee University professor Timothy Jost notes in a Health Affairs Blog post. In fact, the danger of letting courts—rather than “the give-and-take of the political process”—decide appropriations disputes was the crux of the Obama administration’s brief appealing the lower court’s ruling, as FierceHealthPayer has reported.

Instead, Jost says the best choice would be for Congress to appropriate CSR funds through 2018, then work with the Trump administration to withdraw the appeal and vacate the district court’s order. While some Republicans might not like that, it should be preferable to plunging the marketplaces into chaos before they can implement an ACA replacement, he argues.