The D.C. Circuit just made it harder for Trump to stop the cost-sharing payments

by Nicholas Bagley — Wednesday, Aug. 2, 2017

This afternoon, the D.C. Circuit granted a motion from a group of fifteen states, led by California, to intervene in the pending appeal in House v. Price. As I explained when the motion was filed, allowing the states to intervene will prevent the Trump administration from unilaterally dismissing its appeal in the case.

That’s a big deal. If the Trump administration wanted to stop making cost-sharing payments, the easiest way to do so would be to dismiss the appeal. The lower court entered an injunction to stop those payments, but put its injunction on hold to allow for an appeal. If Trump were to order the appeal’s dismissal, the injunction would spring into force, and the payments would end.

Now the states can keep the appeal alive, even if Trump wants to get rid of it.

When the states asked to intervene, it wasn’t totally clear they should be allowed to do so. Intervening in a case that’s already on appeal is strongly disfavored. I nonetheless thought the states had a good case—and so did the D.C. Circuit, for the same reasons:

[T]he States have raised sufficient doubt concerning the adequacy of theDepartment’s representation of their interests. Indeed, the Department nowhere argues in its intervention papers that it will adequately protect the States’ interests or even continue to prosecute the appeal. Such “equivocat[ion] about whether” the Department will continue to “appeal the adverse ruling of the district court” or will otherwise protect the intervenors’ interests, Smoke v. Norton, 252 F.3d 468, 471 (D.C. Cir. 2001), constitutes at least the requisite “minimal” showing that the Department’s “representation of [the States’] interest ‘may be’ inadequate.” Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972) (emphasis added). …

… [T]he States’ motion is [also] timely. … Where, as here, substantial doubts about the inadequacy of representation develop after the case has begun, timeliness is measured from when the potential inadequacy of representation develops. … The States have filed within a reasonable time from when their doubts about adequate representation arose due to accumulating public statements by high-level officials both about a potential change in position and the Department’s joinder with the House in an effort to terminate the appeal.

In other words, President Trump’s loose lips have once again created problems for his lawyers. Go figure.

Now, the Trump administration could probably stop the payments, with or without the pending appeal. The administration could simply announce that, after a thorough review, the Justice Department has concluded that no appropriation exists to continue making the payments. Although there’s a regulation on the books requiring payments to be made, the absence of an appropriation would likely prevent the administration from following through.

Politically, however, it’d be awfully convenient to blame the courts. The D.C. Circuit’s decision takes that approach off the table. If Trump wants to end the payments, it’ll be on his head.

@nicholas_bagley

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About Nicholas Bagley

Nicholas Bagley is a Professor of Law at the University of Michigan Law School.

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