Trump Admin Tells Court Only Congress Can Pay Health Insurers What They’re Owed

President Donald Trump waves to members of the media before boarding Marine One helicopter on the South Lawn of the White House in Washington, Wednesday, Oct. 11, 2017, for a short trip to Andrews Air Force Base, Md., and then onto Harrisburg, Pa. (AP Photo/Pablo Martinez Monsivais)
Pablo Martinez Monsivais/AP

The lawsuit from nearly 20 states over the Trump administration’s recent decision to cut off subsidies to health insurance companies—a move roiling the individual market and raising premiums across the country—goes before a judge on Monday.

On Friday, the Trump administration submitted a response to the states’ attempt to force the payments, arguing that only Congress can constitutionally authorize those payments. The argument carries echoes of an earlier, still-pending lawsuit by House Republicans that sought to declare the Obama administration’s expenditures on the subsidies an illegal usurpation of Congress’ power of the purse – except now the roles are somewhat reversed.

“No matter how compelling the rationale, neither the Executive nor the Judiciary has the authority to expend taxpayer dollars, including billions of dollars in annual cost-sharing reduction payments under the Affordable Care Act (“ACA”), if Congress has not appropriated those funds,” the Justice Department said, asking the court to reject the states’ request for a temporary for a temporary restraining order that would force the administration to pay out the funds. “Congress may reverse course and appropriate funds, but the Executive cannot make that decision for Congress by expending funds where no appropriation for CSR payments exists.”

As this case winds its way through federal courts, Congress is attempting to do what it refused to do under President Obama: officially appropriate the cost-sharing reduction payments that go towards subsidizing health insurance plans for low-income Americans. But as the Trump administration argues in legal filings that Congress must pass a bill to make the subsidy payments, it is at the same time actively discouraging them from doing so.

White House Director of Legislative Affairs Marc Short said Thursday that the bill does little more than “extend the bailouts” to insurance companies, and demanded several more major concessions that would be certain to doom the effort entirely.

“We need to begin repealing the mandates and repealing the taxes and then we could have a deal,” he said, listing measures that would further depress enrollment in the individual market and would drive Democrats away from the deal.

The earlier case dates back to the launch of Obamacare’s individual market, when the Republican-controlled House sued the Obama administration for making the cost-sharing reduction payments without their authorization (which they refused to grant). Until this year, the Justice Department had fought the lawsuit. In October, it reversed course, agreeing that the payments were unconstitutional and cutting them off with little warning. Nearly 20 states, led by California, then launched a new lawsuit, arguing that the administration violating the Affordable Care Act, the Administrative Procedure Act and the Constitution’s “Take Care” clause.

Read the administration’s response below:

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