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Speaker 1: Donald Trump and Congressional Republicans say repealing Obamacare will be

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Speaker 1: a top priority once the new president is sworn in.

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Speaker 1: But with twenty million people depending on Obamacare for their

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Speaker 1: health insurance, and immediate cut off could pose problems. How

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Speaker 1: Speaker Paul Ryan acknowledged as much last month. We have

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Speaker 1: to bring relief to Obamacare as quickly as possible so

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Speaker 1: that it stops doing damage not just to the healthcare

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Speaker 1: system but to the families of America who need affordable

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Speaker 1: health insurance. So that is why we're gonna do is

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Speaker 1: do it as well and as fast as we can,

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Speaker 1: but make sure that the transition um does not pull

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Speaker 1: the rug out from other people. Further complicating matters is

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Speaker 1: a lawsuit filed in teen by House Republicans that claims

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Speaker 1: the Obama administration has been making unauthorized payments to insurance companies.

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Speaker 1: Republicans won before a federal trial judge in the cases

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Speaker 1: on appeal. Now, the dispute is the focus of courthouse

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Speaker 1: wrangling that could affect how repeal of Obamacare happens. With

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Speaker 1: us today. To talk about the litigation and its impact

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Speaker 1: on the potential repeal of Obamacare is Abby Gluck, a

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Speaker 1: professor at Yale Law School, and Abigail Mindcreef, a professor

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Speaker 1: at Boston University's School of Law. They're joining us on

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Speaker 1: the Spectrum Enterprise phone line Spectrum Spectrum Enterprise nationwide fiber

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Speaker 1: based network and I T infrastructure solutions. Abby Gluck. Uh,

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Speaker 1: first of all, we'll try to keep the two heavy

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Speaker 1: straight here. Uh. This is a a complicated case. Complicated

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Speaker 1: stuff here, Let's just start by talking about the underlying case.

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Speaker 1: What is it that the House Republicans set in their

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Speaker 1: lawsuit that the Obama administration was doing wrong? Okay, great,

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Speaker 1: so House versus Burwell is a challenge to what are

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Speaker 1: the call the cost sharing reductions provided under the Affordable

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Speaker 1: Care Act. Those are payments to insurers that in turns

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Speaker 1: translate to UM lower deductibles and co pays uh for

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Speaker 1: individual Americans who have insurance policies. And a couple of

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Speaker 1: years ago, the House filled the lawsuit saying that the

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Speaker 1: funds were not properly appropriated in the Statue of whe

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Speaker 1: Thebama administration to actually be paying those uh cost young reductions.

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Speaker 1: That's what the case is about, the small level. But

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Speaker 1: it's important to also understand that the case is also

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Speaker 1: about a huge legal principle that has nothing to do

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Speaker 1: with the Affordable Care Act, and that's the ability of

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Speaker 1: one House of Congress to sue the President for his

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Speaker 1: implementation of the law. House versus Burwell as an unprecedented

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Speaker 1: victory for the House of Representatives on that point. There's

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Speaker 1: never been a successful challenge UM on that point before.

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Speaker 1: So the case is very important regardless of what happens

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Speaker 1: to the Affordable Care Act, abigail. So take us through

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Speaker 1: the procedural impact of the case until now. Just tell

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Speaker 1: us what's happened procedurally, so so precedually so far where

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Speaker 1: we are is that the district court granted an injunction

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Speaker 1: against the pain of cause and subsidies. First, as as

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Speaker 1: Abby Gluck said, UM, the district Court ruled that the

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Speaker 1: House had standated challenge the Obamacare aspect of the case.

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Speaker 1: There was another aspect of the case where they lost

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Speaker 1: their UH, their argument understanding. So they were granted standing.

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Speaker 1: And then they won on the merits UM and one

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Speaker 1: an injunction against the payment of cast sharing subsidies, the

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Speaker 1: district court having ruled that the funds were not in

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Speaker 1: fact appropriated UM and UH. And then they stayed, the

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Speaker 1: District Court stayed, the UH stayed the order pending the

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Speaker 1: appeal and UH and we're currently pending before the the

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Speaker 1: federal appeals Court in a DC circuit and UH and

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Speaker 1: the House moved recently to to hold the case in

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Speaker 1: abeyance pending the transition to the Trump administration, arguing that

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Speaker 1: the Trump administration might drop the the appeal, or that

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Speaker 1: the House and the Trump administration might be able to

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Speaker 1: reach a settlement because with the transition, obviously we would

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Speaker 1: have a different perspective venture in the White House. UH,

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Speaker 1: it might not be interested in pursuing the appeal any further.

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Speaker 1: So the DC Circuit agreed to hold the case in

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Speaker 1: a bay in And now we have some interveneers to UH,

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Speaker 1: individuals from California who are asking to intervene in the

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Speaker 1: litigation to UM to push the DC Circuit to rule

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Speaker 1: on the merit regardless of whether the Trump administration might

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Speaker 1: be interested in either dismissing or settling the deal. Okay,

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Speaker 1: so we've got a lot lot going on here. Let's

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Speaker 1: put the interveneers to the side for a second, Abbey,

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Speaker 1: collect just talk about what the incoming Trump administration's options

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Speaker 1: might be assuming that the interveneers don't don't complicate their plans.

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Speaker 1: Given that the president elect to said he wants to

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Speaker 1: appeal Obamacare, what might he and what could he do

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Speaker 1: with this lawsuit? Yeah, I mean he's in a really

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Speaker 1: difficult position. If I were time, I might actually be

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Speaker 1: rooting for the interveners to win. Uh. And this is why, um,

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Speaker 1: if does nothing. Let's say he comes in, he says, Okay,

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Speaker 1: we're gonna drop the appeal. What happens then it means

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Speaker 1: that the House wins. It means the cost sharing payments stop.

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Speaker 1: It means the insurers can't afford to be on the

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Speaker 1: exchanges anymore and they pull out, and you get insurance

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Speaker 1: market chaos. Right now, you may be saying, Okay, he's

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Speaker 1: going to repeal the Affordable Care Act, but he's not.

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Speaker 1: He's repealing and delaying. So the Affordable Care Act is

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Speaker 1: still going to be operational for the next four years

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Speaker 1: maybe um, which means but it won't be able to

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Speaker 1: function right if he's cost sharing payments stopped, So he's

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Speaker 1: going to have to do what pay the insurers money

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Speaker 1: to keep them on the exchanges and not translate to

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Speaker 1: exactly the same kind of insurance bail out that he's

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Speaker 1: been criticizing for the last two years. He's been He's

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Speaker 1: put between a rock and a really hard place. That's

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Speaker 1: what I think he should be rooting for the interveners

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Speaker 1: to win because if they win, the cost sharing payments

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Speaker 1: continue and he sort of get out of this jam

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Speaker 1: that the House created when they had an administration that

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Speaker 1: was unfavorable to their position him. Well, Abby Gluck, it's

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Speaker 1: just a fallo up on that is a settlement possible?

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Speaker 1: Could the administration settle in the way that says we

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Speaker 1: will continue those payments for you know, a certain period

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Speaker 1: of time to have that kind of transition that that

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Speaker 1: Paul Ryan was talking about. Sure, but that's laughable, right,

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Speaker 1: So what's the settlement? A settlement is sure will stay

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Speaker 1: the impact of the injunction as long as what the

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Speaker 1: affordable character is in existence. So that's a fake victory

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Speaker 1: for the House, right. And the reason Trump should not

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Speaker 1: want that, right. The reason Trump should not want that

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Speaker 1: is that any incoming president should not want the lower

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Speaker 1: court decision to stand because the lower court gives Congress

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Speaker 1: a lot more power to challenge and incoming a president

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Speaker 1: in the court room than it's ever had in history.

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Speaker 1: So it's not really in any administration's interest to let

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Speaker 1: that lower court decisions stand as an initial matter, which

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Speaker 1: is why it is an incentive to appeal. But any

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Speaker 1: kind of settlement will just acto be translated to what

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Speaker 1: would have been a win for the Obama administration because

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Speaker 1: would mean that the car show reductions will continue as

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Speaker 1: long as the affordable charec DO is in existence. Of course,

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Speaker 1: they can settle it and they can spin it as

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Speaker 1: a victory. With the practical matter, They're just going to

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Speaker 1: be continuing the affordable character as the Obama administration thought

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Speaker 1: it was drafted in the first place. So the whole

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Speaker 1: thing is sort of an Alice in Wonderland scenario. And Greg,

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Speaker 1: I just want to point out that despite the Alice

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Speaker 1: in Wonderland scenario, the Senate just released a budget resolution

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Speaker 1: to speed Obamacare repeal, so they're starting off with that.

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Speaker 1: But but the Obamacare repeal doesn't have a replacement, right,

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Speaker 1: exactly exactly key over the four years three to four

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Speaker 1: year delay, right, And so I'm not disagreeing with you,

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Speaker 1: I'm just I'm just stating what just happened. Well, thanks

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Speaker 1: for clarifying that. Our guests are Abigail Mindcreef, who teaches

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Speaker 1: at Boston University School of Law, and Abbey Gluck of

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Speaker 1: Yale Law School. They're joining us on the Spectrum Enterprise

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Speaker 1: phone Line, Spectrum Enterprise Nationwide fiber based network, and I

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Speaker 1: T infrastructure solutions. Abigail Moncrief, Abbey was Abby Gluck was

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Speaker 1: saying that, uh, that the Trump administration might almost be

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Speaker 1: better off if uh, this case went went forward and

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Speaker 1: the payments weren't cut off. In a sense, they would

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Speaker 1: be losing in terms of their position on Obamacare, but

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Speaker 1: winning in terms of the flexibility they would have. Do

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Speaker 1: you agree with that assessment? Yeah, I mean, I think

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Speaker 1: I think Abby's put it exactly right when she said

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Speaker 1: that the Trump administration is caught between a rock and

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Speaker 1: a hard voice. I think they the Trump administration doesn't

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Speaker 1: want to look like it's caving on the attack against Obamacare. UM.

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Speaker 1: But at the same time, I don't think any incoming

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Speaker 1: president should say, oh, there's this court order that says

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Speaker 1: that the House of Representatives has standing the challenge anything

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Speaker 1: I do that might plausibly be illegal or against the

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Speaker 1: houses preferred interpretation of the statutory of previsions. So uh,

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Speaker 1: you know, let's just let that stand. The Trump is

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Speaker 1: the no no incoming presidents, no president should want the

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Speaker 1: House of Representatives to be allowed to challenge the the

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Speaker 1: executive branches interpretation of a statutory provision. So so if

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Speaker 1: I were the administration, regardless of my position on Obamacare,

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Speaker 1: I would say, look, let's fix Obamacare through the legislative process,

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Speaker 1: not through this lawsuit. Uh. And so I you know,

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Speaker 1: I think I would be inclined to make a big

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Speaker 1: show of yeah, of course we're going to repeal Obambacare,

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Speaker 1: but we're not going to do it for this, uh,

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Speaker 1: through this court case. I think that's how, you know,

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Speaker 1: they should want to proceed. But by the same token,

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Speaker 1: you know, and the Trump administration wants to work with

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Speaker 1: Bryan and and and the House, and the House brought

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Speaker 1: this lawsuit, so you know, so I don't know what

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Speaker 1: they're gonna do, and I don't know what's best for them, really, Abbey,

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Speaker 1: how is the DC Circuit Court of Appeals likely to

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Speaker 1: rule on this emergency motion to intervene? Well, they ruled

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Speaker 1: last week, but they did you last week because they

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Speaker 1: pushed the time frame up. So what had happened was

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Speaker 1: and the interveners came in. There have been some papers

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Speaker 1: file that said Okay, basically, let's deal with this after

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Speaker 1: the administration takes office. Um and the interveners came back

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Speaker 1: and said, no, we have reasons for wanting this to

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Speaker 1: happen before, precisely because they're afraid of some settlement that

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Speaker 1: would let the decisions stand while still sort of waking

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Speaker 1: the same harm on the insured. And by this by

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Speaker 1: to one order last week, the d C or for

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Speaker 1: the holidays, the d C Circuit came in and said, okay,

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Speaker 1: we want the briefing files before the twenties. So they're

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Speaker 1: setting themselves up to actually make the decision before. Uh.

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Speaker 1: We don't know how that's going to come down, but

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Speaker 1: at least it sounds like at least two of the

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Speaker 1: judges on that panel had heard sort of the timing

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Speaker 1: implications that were buried or emphasized in the intervener's briefing,

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Speaker 1: and you know, I thought they were reasonable, and it

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Speaker 1: pushed the cases on a faster time frame than the

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Speaker 1: House had wanted. Abigail that the judges who ruled in

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Speaker 1: that case, they're the two Democratic appointees, David Tatol and

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Speaker 1: Tree Shrineavasan were the ones who said, uh, you respond

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Speaker 1: to this this emergency motion, and Republican appointee Karin Lacraft

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Speaker 1: Henderson said, I disagree. Does this case look like so

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Speaker 1: many other Obamacare cases where we're gonna see a partisan

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Speaker 1: divide on on the Court of Appeals? I mean, it

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Speaker 1: sure looks like it so far. Um. I'm I'm surprised

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Speaker 1: by it by the two to one split. Um. I

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Speaker 1: would think that that some of the big structural issues

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Speaker 1: in this case would be um interesting in a kind

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Speaker 1: of nonpartisan way. Um. But but it sure looks like

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Speaker 1: it's splitting along your party lines so far. Um. And

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Speaker 1: is the upshot of that, given given that this is

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Speaker 1: a democratic a court with more democratic appointees, that that

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Speaker 1: it's likely that the court might let the appeal go forward? Sure? Yeah,

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Speaker 1: I mean I think I think that's exactly right. I.

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Speaker 1: Um yeah, I can't. I can't imagine that. You know,

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Speaker 1: it is a heavily democratic court. Um. And and so

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Speaker 1: if it can, if it maintains this part of the events,

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Speaker 1: and I think that's good news for the interveners. Okay,

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Speaker 1: that means we're gonna have more to talk about here

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Speaker 1: on Bloomberg Law. As this case goes forward, we will

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Speaker 1: keep an eye on it and talk more with our

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Speaker 1: guest today, uh Abby Gluck of Yale Law School and

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Speaker 1: Abigail Mindcrief of Boston University School of Law. Thank you

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Speaker 1: so much for being on Bloomberg Law to talk about

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Speaker 1: this case that UH could make the complicated repeal of

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Speaker 1: Obamacare even more complicated