On December 20, 2016, one day after Donald Trump was officially elected president of the United States but before he has actually taken office, two individuals filed the first of what are likely to be many lawsuits challenging actions of the Trump administration affecting the rights of lower-income Americans to health care. Actually, what was filed was not a new lawsuit, but rather a motion to intervene in the appeal of an existing lawsuit.

That lawsuit is House v. Burwell, which is very familiar to readers of Health Affairs Blog. House v. Burwell was filed in November of 2014, following a July 2014 party-line vote by the House of Representatives to sue the administration for what Republicans in the House viewed as abuses of presidential power. One of the issues raised by the lawsuit was the administration’s funding of the ACA’s cost sharing reduction (CSR) program, arguably without an explicit appropriation,

On December 20, two of the 5.9 million individuals who actually benefit from CSRs asked the court to allow them to intervene in the House v. Burwell appeal to protect their interests in continuing to receive the CSRs, which are opposed by the House and, in their view, may well not be adequately protected by the Trump administration.

Background

The CSRs are an essential element of the ACA’s program for making health insurance affordable and health care available to low and moderate-income Americans. The ACA offers lower- and moderate-income Americans tax credits (APTC) to help make insurance affordable. But the average deductible for an individual in an ACA benchmark silver plan in 2016 is over $3,000.

To make health care itself affordable, the ACA requires insurers to reduce cost sharing for individuals and families with incomes below 250 percent of poverty. The CSRs both reduce the out-of-pocket maximum faced by low-income enrollees and increase the actuarial value of their coverage. As of the second quarter of 2016, 5.9 million Americans, or 56 percent of all marketplace enrollees were receiving CSRs.

Under the CSR program, insurers are required to reduce cost sharing for eligible individuals, the Treasury is required to reimburse insurers for the costs they incur when they do so. It is estimated that the CSRs will cost about $7 billion this year and $130 billion over the next ten years. But the House’s lawsuit claims that the funds for the CSRs were never appropriated, and thus the expenditures the administration is incurring for them are illegal.

The Obama administration moved to dismiss the House’s complaint, contending that the federal courts did not have jurisdiction to hear lawsuits by members of Congress challenging the actions of the executive. In September of 2015, however, Judge Rosemary Collyer of the United States District Court of the District of Columbia refused to dismiss the House’s claim, and in May she ruled for the House on the merits, enjoining the government from spending more money on the CSRs but staying her order pending appeal.

The government filed an appeal arguing again that the House lacked standing to bring the case and that the expenditure was supported by a valid appropriation. The House first requested and was granted a month’s delay in responding to the appeal, and then, following the November election, represented to the court:

In light of public statements by the President-Elect and his campaign, there is at least a significant possibility of a meaningful change in policy in the new Administration that could either obviate the need for resolution of this appeal or affect the nature and scope of the issues presented for review.

The court granted the motion and stayed the case until late February.

The Argument For Intervention

This, however, has created a serious problem. The 5.9 million Americans who receive cost-sharing reductions are arguably no longer represented in the litigation. The Obama administration was trying to preserve the benefits to which they are entitled, but the Trump administration may not be willing to do so. The individuals who have moved to intervene, represented by experienced Supreme Court litigator Andy Pincus, ask to fill this gap.

Under the federal rules, an individual is entitled to intervene in a case brought by another if:

  • The application is timely;
  • The applicant has a legally protected interest in the action;
  • The action threatens to impair that interest, and
  • No party to the action can adequately represent the applicant’s interest.

Pincus’ brief makes the case that his clients meet these requirements. Recipients of CSRs have an obvious interest in the continuation of the program—they simply cannot afford health care without it. There is every reason to believe that if the House prevails in the action, that interest will be threatened, because their insurers will either leave the marketplace leaving them without affordable health care or will try to stop reducing cost sharing in the absence of reimbursement from the government. As I and others have described, the individual insurance market would be plunged into chaos and might collapse.

Until now the interests of CSR recipients were vigorously represented by the Obama Justice Department. It is now far from clear whether the Trump administration will continue to defend their interests. Since President-elect Trump was just formally elected on December 19, the motion is certainly timely. As the applicants meet all the requirements for intervention as of right, it is likely that their motion will be granted.

What Intervention Would Mean

If the petitioners are allowed to intervene, the House and Trump administration will not simply be able to settle the case and end the CSRs without the court considering the serious issues raised in the appeal as to whether one house of Congress can sue the administration and whether the funding for the CSRs has in fact been appropriated. Congress could, of course, explicitly end funding for the CSRs or the Trump administration could decide to stop funding them, but if they did, they would have to take political responsibility for the decision and the consequences for the individual insurance markets. The motion to intervene underlines the choices that must be made and who will be responsible for them.