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The attorneys general of eighteen states and the District of Columbia are now suing the Trump administration over his decision to suspend cost-sharing reduction payments, required by the Affordable Care Act, to health insurers to make health care more affordable for low-income people.
"By refusing to make the CSR reimbursement payments mandated by the ACA and its permanent appropriation," the states argue in their filing, "the President and the Secretaries are deliberately seeking to undermine, rather than faithfully execute, the ACA." It's entirely possible that health insurers will also file suit, as they are still required by the law to provide the subsidies to customers and the government is withholding the funds they're supposed to use to do that.
But there's another suit pending that could very well thwart Trump's sabotage of the CSR payments, ironically the suit that Trump is using as the excuse for his action.
For years, Republicans have argued that Congress never properly authorized the payments when it passed the Affordable Care Act in 2010, because it did not appropriate specific funds for them. The GOP-led House filed a lawsuit to that effect in 2014, and last year, U.S. District Court Judge Rosemary Collyer ruled in agreement, declaring the payments illegal but keeping them flowing pending an Obama administration appeal. In August, with the administration out of power, the U.S. Court of Appeals for the District of Columbia Circuit ruled that Democratic attorneys general could instead defend the subsidies in court. New York attorney general Eric Schneiderman has indicated that he will continue to pursue that litigation, but that Friday’s filing, seeking the injunction, will take precedence. Given that Collyer's punitive ruling came as a surprise to many legal observers, it's likely that other judges will disagree with her interpretation of the law.
Collyer tread where most qualified federal judges would not go—into a dispute by the legislative branch against the executive when a quick and easy remedy existed. All Congress needed to do was make a correction in the legislation. Most judges would have dismissed the case with that message to Congress. In fact, Collyer's questionable ruling and the ongoing existence of that original suit means it's more likely that a court will grant an injunction on this one, the direct challenge to Trump's action. All the legal precedent, excepting Collyer's unprecedented and clearly partisan ruling, goes against Trump. If the insurers decide to sue, there's precedent there, too, including on challenges to other aspects of Obamacare.
Of course, Congress could still fix this pretty easily, if they cared more about upholding the laws that they pass than appeasing their increasingly maniacal base. It would still only take legislation, but it would also take veto-proof majorities for that legislation in both the House and Senate.