The Department of Justice (DOJ) has filed its response to the motion filed on behalf of the U.S. House of Representatives (House) seeking to put the lawsuit challenging the Affordable Care Act’s (ACA’s) cost-sharing subsidies on hold until the Trump administration takes over. Not surprisingly, the DOJ strongly opposes the House request.
In U.S. House of Representatives v. Burwell, the House is asking the court to bar the Obama administration from issuing cost-sharing subsidies to eligible ACA policyholders unless and until Congress appropriates the funds. The ACA cost-sharing reduction program reduces co-pays, co-insurance and deductibles for individuals with incomes of up to 250% of the federal poverty line who enroll in “Silver” plans through the healthcare exchanges. The administration has argued that the House does not have legal standing to bring its suit and in any case, the ACA supports payment of the cost-sharing subsidies. The district court agreed with the House and the administration has appealed the rulings to the Court of Appeals for the D.C. Circuit.
In a motion filed after the November election, the House is asking the court to put the case on hold to give the incoming Trump administration the opportunity to decide whether to amend, repeal or replace the ACA. According to the motion, representatives of the House and the Trump transition team are in discussions regarding options that could resolve the matter.
In its response opposing the hold request, the DOJ notes that the monthly subsidy payments have been made since 2014 and Congress has taken no legislative action to restrict the ongoing payments. The DOJ says the House suit is unprecedented and raises separation of powers concerns. According to the DOJ, the case “meddl[es] in the internal affairs of the legislative branch” by allowing one House of Congress to circumvent the legislative process. The DOJ states that if the House wants to eliminate the subsidies it should enact legislation, which would require the House to obtain the agreement of the Senate, present the resulting measure to the President, and to accept responsibility for the results.
The DOJ says that the House is seeking to decide how laws will be executed – but that is the job the constitution assigns to the executive branch. Further, the DOJ argues that the House is asking the court to go beyond the judicial branch’s constitutional authority as well. According to the DOJ, the election did not change these constitutional principles and the incoming administration likely won’t agree that the House should be able to alter the way the executive branch administers federal law.
Beyond the procedural concerns, the DOJ states that the lower court adopted a misguided interpretation that “would thwart the structure of the ACA’s carefully calibrated system of subsidies, severely disrupt the insurance markets, and – perversely – lead to substantially greater federal expenditures.” The DOJ referred to amicus briefs filed by the insurance industry expressing concerns about the dire impact sudden removal of the subsidies could have on the insurance market.
The DOJ points out that the ACA and its subsidy provisions remain the law of the land and requiring the House to file its appellate brief on the agreed upon schedule will not constrain the incoming President, as the House asserts. Denying the motion will simply allow the appeal to proceed in an orderly and timely fashion.
The DOJ did offer a way out for the House to avoid proceeding with the case, stating that the administration has no objection if the House wishes to dismiss the case and if the court vacates the lower court decision that agreed with the House position. With such a resolution being highly unlikely, the House’s request is now teed up for the court to rule on the motion.
We will continue to follow this case so check back for further developments.
A link to the DOJ response is below: