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.
Yes, House v. Price will be delayed for 90 days. But Congress can still appropriate the money — and Trump can still drop the appeal.
— Nicholas Bagley (@nicholas_bagley) May 22, 2017
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.