Even as they plot a quick repeal of the Affordable Care Act, congressional Republicans must also work with Donald Trump’s transition team to decide how to handle a lawsuit that could prematurely spell disaster for the law’s individual marketplaces.
In the House v. Burwell case, GOP lawmakers sued President Barack Obama’s administration over the legality of the ACA’s cost-sharing reduction payments to health insurers, saying those funds were never appropriated by Congress. Last May, U.S. District Court Judge Rosemary Collyer sided with the plaintiffs, and the Obama administration appealed, but after Trump’s election win the appeals court agreed to stay the case until February.
Two consumers then filed a motion to intervene in the case, arguing that if the Trump administration and the House agree to either dismiss the appeal or settle the case, it will have "devastating consequences” for consumers and the healthcare system. On Dec. 29, the appeals court lifted the stay in the case in order to give the court time to rule on their motion before Trump takes office.
Meanwhile, while House Republicans and Trump’s transition team are discussing their options, they aren’t yet willing to reveal what they plan to do, according to The New York Times. Phillip Blando, a spokesman for the Trump transition effort, told the publication it had no comment on the matter except to say that “upon taking office, the Trump administration will evaluate this case and all related aspects of the Affordable Care Act.”
That process will put Trump in a tricky situation, the Times notes. He could choose to fight congressional Republicans on some key questions in the case in a bid to boost certain powers of the executive branch, but he may not want to do so given his own opposition to the ACA. For their part, GOP House members want to ensure the case preserves Congress’ right to sue the White House over violations of its power to control federal spending.
There is more at stake than just the balance of power between government branches, however. Even before the two consumers filed their motion to intervene, experts have warned that eliminating cost-sharing reductions could lead the ACA exchanges to collapse, as insurers would be forced provide billions of dollars in subsidies without government assistance. Indeed, AHIP CEO Marilyn Tavenner has said that insurers will "pull out of the market during the next logical opportunity" if they know such subsidies will not continue.