One of the most tempting ways for the Trump administration to do serious damage to Obamacare has to be the lawsuit held over from the Obama administration challenging cost-sharing subsidies.
Cooked up by former Speaker John Boehner back when Boehner mattered, the suit was originally considered nothing more than a nuisance case because most courts have stayed well out of disputes between Congress and the executive branch, because they don't see it's their role to mess about in the disputes of the other two branches, and because there are myriad constitutional ways in which those two branches can figure it out on their own. But Boehner, and now by extension Paul Ryan, got lucky and got a sympathetic judge.
So from the excellent Nicholas Bagely, here's the question that's now hanging over the Trump administration and the Republican-controlled Congress, who have no real capacity to repeal and replace Obamacare:
A pending court case, House v. Price (née House v. Burwell—and so much turns on the name change), has given the administration a bomb it could use to blow up insurance markets across the country. At stake is the legality of the payments the federal government makes to insurance companies to help cover the medical expenses of low-income people.
Destroying those markets, however, carries huge political risks. Trump's full-throated support for a reckless replacement bill has convinced millions of Americans that he's intent on taking away their insurance. If their insurance does go away, they'll probably blame him. It's his presidency, and his problem.
By moving to defuse House v. Price, the Trump administration could signal that it means to make the best of Obamacare. At the same time, however, the case may represent the last best chance to rip the statute up from the roots. Skittish insurers are watching closely to see what the administration will do. Time is short: Insurers will have to decide very soon whether they want to participate on Obamacare’s exchanges in 2018.
It's the insurers that are the key, here.
If Obamacare could be repealed entirely—and all the demands upon insurance companies with it—they'd probably still be pissed because they've spent all these years changing their core business practices for it. But they'd be a lot less pissed than if they were still required to take on Obamacare patients but weren't getting what are, in some ways, price supports.
Now some top House Republicans want to save the insurance companies that angst by actually funding the payments that they sued President Obama over. And by top Republicans, read House Energy and Commerce Committee Chairman Greg Walden of Oregon and Appropriations Health Subcommittee Chairman Rep. Tom Cole of Oklahoma, who both recognize the chaos that could ensue if the payments are stripped. Chaos from the insurance companies, that is, whose outrage they probably care about more than their constituents'. The problem is, they'd have to make a deal with House Democrats to appropriate this money, because the Freedom Caucus sure as hell isn't going to go along with anything—particularly money—that keeps the law afloat.
So, yeah, the chaos continues. Meanwhile, the case is in limbo until late May, when both sides are required to tell the court what they intend to do. At that time they could agree to keep it pending while they figure out whether they're ever going to do anything about health care, which seems likeliest. But if Health and Human Services Secretary Tom Price (who built a career out of hating Obamacare) really, really wants to kill it, here's a very good way to do it.