What’s going to happen with House v. Burwell?
I’m getting a lot of head-scratching questions about the lawsuit, which is now pending at the D.C. Circuit. (For background, see here.) Let me see if I can help.
As I see it, there are two distinct questions in play:
- Does President Trump want to stop making cost-sharing payments on Day One, leading to the immediate collapse of the individual insurance market in many states? Or does he want to keep making the payments during a transition period?
- What approach will the Trump administration take to the litigation?
The answer to (1) will drive the answer to (2).
If President Trump wants to stop making the cost-sharing payments, he could immediately dismiss the appeal and agree to the entry of final judgment in the district court. That judgment would then preclude his administration from dipping into the federal Treasury. Alternatively, the Trump administration could declare that the cost-sharing payments are unconstitutional, cease making those payments, and move to dismiss both the appeal and the lawsuit as moot.
If Trump instead wants to temporarily maintain the cost-sharing payments, he has a couple of options. The most straightforward approach, I think, would be to continue appealing the district court’s decision on standing grounds, but drop the appeal on the merits. That would buy him time while the D.C. Circuit considers the case. If the court eventually holds that the House lacks standing to sue—and that’s the likeliest outcome—the case goes away. Alternatively, Trump could ask the House to voluntarily drop the lawsuit, leaving him free to continue making the cost-sharing reductions without fear of a court judgment.
The short of it is that Trump has options. The hard question here isn’t about which litigation strategy he adopts. The hard question is whether he wants to burn down the individual insurance market on Day One.
