19 AGs Seek Judicial Order to Keep Health Care Subsidies Coming

SAN FRANCISCO (CN) — Nineteen attorneys general asked a federal judge Wednesday for a nationwide emergency restraining order to stop President Trump from ending subsidies that reduce health care costs for lower-income Americans.

If the motion, led by California Attorney General Xavier Becerra, is granted, the federal government would have to keep paying the subsidies to insurance companies for the duration of the litigation, potentially averting a collapse of the Patient Protection and Affordable Care Act, known as Obamacare.

The plaintiffs warn that terminating the payments would cause people to lose their insurance coverage, as premiums skyrocket and insurers abandon marketplaces.

“Congress doesn’t have the tools to enforce the laws the way the attorneys general have,” Becerra said Wednesday morning during a news conference in Sacramento. “Thank God we have institutions that are stronger than Donald Trump’s ego.”

In the Oct. 13 lawsuit, filed in San Francisco federal court a day after Trump announced an end to the subsidies, the attorneys general say the health law requires the federal government to pay the subsidies, worth $7 billion this year. Ending them violates the Administrative Procedure Act and the Constitution’s Take Care clause, which requires the executive branch to enforce the country’s laws, according to the lawsuit.

Becerra asked for the restraining order by Thursday afternoon, to guarantee the next round of subsidy payments, which are due Friday.

He warned in a brief that failure to make them would cause “immediate and irreparable harm to the plaintiff states and the millions of Americans who benefit from affordable health care coverage under the ACA.”

U.S. District Judge Vince Chhabria set a hearing on the motion for next Monday, in response to an emergency request by the government to hold a hearing in two weeks while they file an opposition brief.

California Deputy Attorney General Greg Brown agreed to Chhabria’s proposed schedule, but warned that missing the Oct. 20 deadline would “inject a large amount of chaos into the health care system and the ACA.”

“That uncertainty is going to cause a lot of problems and result in fewer people getting insurance,” Brown said. “It’s an incredible amount of chaos at a very inopportune time, with open enrollment starting in just a few weeks. These rates are not things that can be easily reset on the fly.”

Open enrollment begins on Nov. 1.

The Trump administration, citing a 2016 ruling from the District of Columbia, said it ended the payments because they were illegal.

In that ruling, in U.S. House of Representatives v. Health and Human Services Secretary Sylvia Matthews Burwell, U.S. District Judge Rosemary Collyer found that Congress did not appropriate money for the subsidies. She barred further payments until Congress appropriates the money, though she stayed her order pending appeal.

“As the only federal court to address this question found, Obamacare usurped Congress’ spending power under the Constitution,” Department of Justice spokesman Devin O’Malley said in a statement last week. “The Department of Justice looks forward to defending the president’s authority to return that power back to Congress.”

But Becerra pointed out Wednesday that the president has been paying the subsidies every month since he took office this year.

“What’s going on is that the president has decided that he’s going to pick and choose which laws he’s going to enforce and which laws he’s going to follow. He doesn’t have that choice,” Becerra said.

He continued: “It really would help if he would read the Constitution and he’d have a sense of why he’s losing so many of these cases,” a reference to rulings this week from two federal judges who rejected, again, Trump’s ban on travelers from seven Muslim-majority countries.

“He’s not following the law,” Becerra said. “He’s not following the process.”

Trump has threatened for months to kill the subsidies and kick the issue back to Congress, after Republican leaders repeatedly failed to repeal the health care law.

A bipartisan deal to restore the subsidies announced Tuesday by Sens. Lamar Alexander, R-Tenn., and Patty Murray, D-Wash., appeared to win Trump’s support. But on Wednesday, Trump tweeted that he “can never support bailing out ins co’s who have made a fortune w/ O’Care.”

The legislation, if passed, would continue the subsidies through 2019 and give states greater control over their insurance markets: allowing people to buy cheaper health plans with high deductibles and catastrophic coverage, measures favored by Republicans.

Joining California as plaintiffs are Connecticut, Delaware, Illinois, Iowa, Maryland, Minnesota, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Washington, Kentucky, Massachusetts, Pennsylvania, Virginia and the District of Columbia.

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