BY TODD RUGER AND KELLIE MEJDRICH, CQ ROLL CALL
The Trump administration faces a key legal deadline Tuesday in the push to repeal and replace the 2010 health care law — and it could prompt Republican lawmakers to appropriate funds for a part of the statute they once sued to stop.
The Justice Department will tell a federal appeals court what it sees as the future of a lawsuit over appropriations for subsidy payments to health insurance providers under the law, estimated at $175 billion over 10 years.
House Republicans filed the lawsuit in 2014 to stop the payments, as a response to a series of President Barack Obama’s unilateral executive actions that they said were unconstitutional.
While the Obama administration had been fighting in court to continue making the payments, the U.S. Court of Appeals for the District of Columbia Circuit froze the case in December because of what House lawyers called “a significant likelihood of a change” in legal strategy under incoming President Donald Trump.
It’s possible the Justice Department will simply ask the appeals court for more time to figure out how to proceed in the case, particularly with Republican lawmakers still plotting how to repeal and replace the health care law, said Josh Blackman, a professor at the South Texas College of Law in Houston, who wrote a book about Obamacare’s implementation.
The department also might agree to continue with the Obama administration’s appeal, which would allow the Trump administration to continue the payments while they figure out a legislative plan.
But if the Trump administration does drop the appeal, it could leave in place a district court ruling that sided with House Republicans and ordered the payments to stop. The Obama administration and lawyers for low-income customers who benefit from the subsidies had argued that stopping the payments would spell disaster for the health insurance industry.
Republican lawmakers would be prompted to act if they want to keep the insurance market stable while they come up with a plan to follow through on campaign promises to repeal and replace the health care law.
Rank-and-file lawmakers are still uncertain of the path forward to repeal and replace the law, even as House GOP leaders work with the Congressional Budget Office on key pieces of their plan.
Rep. Bill Flores, R-Texas, told reporters Thursday that Congress would have to appropriate money for cost-sharing subsidies to stabilize the transitioning health care insurance market under a Republican overhaul of the health care system. Flores is the former chairman of the conservative Republican Study Committee, a powerful caucus of House Republicans.
The Obama administration had said the health care law required the government to make the payments for out-of-pocket costs to the lowest-income people, so it could do so out of the same account as Refundable Tax Credit Program payments for premiums. House Republicans argued in the suit that the law doesn’t permit that.
Flores told CQ he didn’t know how much money that would involve, or how quickly the money would need to move. The time period for the payments would be “whatever the transition is.” Flores would not say if House leadership has decided how to move forward on the case, referring the question to the leaders themselve.
House leadership aides did not immediately respond to a question from CQ about plans for the legal proceeding.
It’s unclear if lawmakers can simply appropriate the money or need authorization language to go with it, given that the lawsuit alleges that the payments were made by the Obama administration illegally.
Flores told CQ Thursday that authorization is already in law. It’s the power to appropriate that the Obama administration didn’t respect, he said.
“They’re already authorized. See, that’s the challenge . . . that they were authorized under Obamacare, so to the extent that Obamacare’s going to have a life, some elements of Obamacare are going to have a life, under the transition, then you have to appropriate to it,” Flores said.
Earlier this year, Obama administration officials cited Republicans’ unwillingness to work with the authorization law — including by following through with authorizations by paying for them in the appropriations process — as one reason the law hasn’t been as successful as it could have been.
The case is House v. Burwell, Docket No. 16-5202.