Rewind the timer to 90 days

The Cost Sharing Reduction suit, House vs Price, had a status meeting this morning in front of the DC Court of Appeals. Nothing much happened. Both parties asked for another ninety day extension.

States are trying to become intervenors with the argument that the House does not have standing. Nicholas Bagley explains:

If the states are allowed to intervene, however, they could pursue the appeal even if Trump decides to drop it. With the appeal in place, the injunction couldn’t take effect until the case is heard and decided.

What’s more, the states are very likely to prevail. Not on the merits: as I’ve written before, the House is right that there’s no appropriation to make the cost-sharing payments. But the D.C. Circuit is likely to be skeptical of the district court’s conclusion that the House of Representatives has standing to sue. That’s why the states want to court to decide the case quickly: they hope to get rid of the lawsuit once and for all…
Courts try to strike a balance. They insist that third parties intervene as early as possible. They also don’t allow intervention if someone who’s already a party can be counted on to represent the third party’s interest.

That’s why the states couldn’t have intervened when the case was before the district court. The Obama administration was vigorously defending the constitutionality of the cost-sharing reductions, much as the states would have done. Their interests were aligned. Even after Trump’s election, it looked like the Justice Department would keep defending the payments—which is perhaps why an earlier effort to intervene in House v. Price was rebuffed.

Matters are very different today. Cementing his reputation as the world’s worst client, President Trump has publicly toyed with the idea of cutting off the cost-sharing reductions in an effort to force concessions from Democrats….

At this point, it’s nuts to think the states can count on the Trump administration to represent their interests.

A key reminder. The short cut fuse of the CSR bomb is limited. If it does not explode by early Fall, carriers can survive paying increased benefits without corresponding revenue if they jack up their rates in 2018 to compensate.

We have one more CSR court cycle to go through before it is resolved one way or another.

11 replies
  1. TenguPhule says:

    If it does not explode by early Fall, carriers can survive paying increased benefits without corresponding revenue if they jack up their rates in 2018 to compensate.

    Which will in turn be used by the GOP to attack the ACA.

  2. Corner Stone says:

    Another reason why we need to stay focused on recruiting, incentivizing and strengthening our coalition with black voters, minorities, people of color and soft-D Trump voters.
    All the white people will still be blaming Obama after Trump blows it all to hell.

  3. Corner Stone says:

    I still don’t get why HC Insurance Cos are ok with letting the CSR bomb go off?

  4. piratedan says:

    @Corner Stone: because the folks in the top chairs can return to the days of hookers and blow if they no longer have to sweat the niceties of actually spending those monthly deposits from folks for insurance coverage on things like paying out claims.

  5. David Anderson says:

    @Corner Stone: They are okay with it if they have enough time to actually plan for it. They can jack up rates high enough to get paid for no CSR if they know that is their universe. What they can’t do is pull money out of thin air if CSR disappears mid-year.

    It is a political decision as well… does an insurer blow its limited political capital on an issue that is not a large profit center for it and the relevant Republican decision makers are opposed to or save it and use its political capital on other issues like Medicare Advantage rules?

  6. daveNYC says:

    Of all the complaints one could make about the ACA, and it’s one I don’t think anyone made, the fact that it’s multiple legs and multiple moving parts made it extremely susceptible to Republican fuckery is one that I don’t remember hearing. Useful knowledge for next time.

    And what a bunch of useless walkers the Republicans are.

  7. Corner Stone says:

    @David Anderson:

    They can jack up rates high enough to get paid for no CSR if they know that is their universe.

    In that scenario, who is going to pay the rates?

  8. janelle says:

    @Corner Stone: Indeed – wouldn’t that just basically drive a shitload of people out of the market altogether and back into a state of being uninsured?

  9. randy khan says:

    Standing is a very handy issue, in that usually it can be raised at any time. There are Supreme Court cases in which they decided a party did not have standing after lower courts had decided the issues on the merits (and, IIRC, in which the issue wasn’t raised until the parties got to the Supreme Court). Courts sometimes even raise the standing issue themselves, when neither party has asked for it to be considered.

  10. gene108 says:

    I wish Boenher & Co. would’ve just impeached Obama, which they were thinking about and their base wanted, in 2014, instead of pushing out this lawsuit as a compromise to do something damaging to Obama, while not actually fucking with him directly.

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