Health law appeal paused as shutdown affects federal courts

Justice Department also asks for pause in suit concerning acting AG Whitaker

Citing the shutdown, Justice Department lawyers asked for a pause in a suit challenging the appointment of acting Attorney General Matthew Whitaker, pictured here. (Douglas Graham/CQ Roll Call file photo)

The partial government shutdown halted a major challenge to the 2010 health care law among other civil litigation on Friday, as Justice Department lawyers sought the same in a challenge from three Senate Democrats to the appointment of Matthew Whitaker as acting attorney general.

The U.S. Court of Appeals for the 5th Circuit issued a two-page order granting the Trump administration’s request to halt the 2010 health care law case “in light of lapse of appropriations.”

A federal judge in Texas struck down the health care law last month, siding with a group of conservative states that argued the law was invalid after Republicans in Congress eliminated a key part of it. The judge let the law stand during the appeal.

It is among cases nationwide where the Justice Department asked for delays in deadlines or pauses in cases where attorneys are prohibited from working even on a voluntary basis. Some judges are insisting cases go forward, while others are granting the delays.

The Justice Department on Friday also asked to pause action on a lawsuit brought by Democratic Sens. Richard Blumenthal of Connecticut, Sheldon Whitehouse of Rhode Island and Mazie K. Hirono of Hawaii.

The Trump administration has a deadline of Jan. 25 to respond to the senators’ complaint, which argues that President Donald Trump’s move to name Whitaker temporarily as the nation’s top law enforcement official violates the Appointments Clause of the Constitution.

“The Department does not know when funding will be restored by Congress,” the Justice Department wrote. “Absent an appropriation, Department of Justice attorneys are prohibited from working, even on a voluntary basis, except in very limited circumstances, including ‘emergencies involving the safety of human life or the protection of property.’”

The federal court system will start feeling the crunch of the shutdown on Jan. 18, when the Administrative Office of the U.S. Courts estimates it will run out of the court fee balances and other non-appropriated funds that so far allowed for regular operations.

Courts have been asked to delay or defer non-mission critical expenses, such as new hires, non-case related travel, and certain contracts to stretch funds to that date. Criminal cases are expected to proceed uninterrupted.

Most court proceedings and deadlines will occur as scheduled, since the courts operate under the Anti-Deficiency Act, which allows work if it is necessary to support judicial powers, the administrative office said.

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