The current occupant of the White House and his director of the Office of Management and Budget, Mr. Mulvaney, are sticking to their half-baked plan of horse trading cost-sharing payments to health insurers for funding to start his big, beautiful, stump-promised wall along the Rio. Himself is making noises that he’s willing to mark his hundredth day as chief executive of the US government by shutting down the operation entirely.
There are two major problems with this “deal,” the first being that paying the subsidies isn’t an option for the administration. Congress passed a law, the president signed it, it survived challenges through the appeals process all the way to the Supreme Court. Paying the subsidies is a legal “shall,” not a “may."
The second is a legal doctrine called “detrimental reliance,” best illustrated in a Louisiana case Breaux v. Schlumberger, in which the owner of a building in Lafayette (Breaux) agreed to lease his property to an oil services firm (Schlumberger), received a letter of agreement and took the building off the market. Before a lease had been signed, the bottom fell out of the oil market and Schlumberger no longer needed the extra space. They didn’t execute the lease, and claimed that they were not bound by any letter of agreement.
The US Fifth Circuit Court disagreed, noting that Mr. Breaux, relying on both verbal assurances and the letter of intent, had passed up several other offers for the property, to his financial detriment.
Just as I and millions of other people have relied on the word of our health insurers that we have coverage, and paid money for that coverage. Just as those insurers have relied on the word of the US government that those subsidies would be paid for people who aren’t poor enough to qualify for Medicaid but not wealthy enough to buy adequate insurance.
IANAL, but it seems to me there are a whopping lot of parties with standing to bring suit against the president for refusal to obey the law, parties who have relied on the word of the government to our financial detriment, should that word be broken.
While a lot of those parties are little folks like carpenters and carpet installers, the sort of people HImself has successfully stiffed in his sullied business career, some are multi-billion dollar corporations, who can afford all the lawyers in the world. That our collective reliance is based on settled law doesn’t speak well for the president’s prospects.
Tying the health care subsidies to his desire for a symbolic victory in his first hundred days was a supremely dumb idea, and the longer he tries to bluff it out, the greater the chances of a shutdown, which will rebound negatively on himself and his party. It’s a fool’s bluff and I don’t doubt some around him know that.
Himself? Who knows? Unless it’s broadcast on his favorite TV channel, it’s doubtful he’s thought about it.