WEBVTT - Republicans Prepare Challenges to Obamacare (Audio)

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<v Speaker 1>Donald Trump and Congressional Republicans say repealing Obamacare will be

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<v Speaker 1>a top priority once the new president is sworn in.

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<v Speaker 1>But with twenty million people depending on Obamacare for their

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<v Speaker 1>health insurance, and immediate cut off could pose problems. How

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<v Speaker 1>Speaker Paul Ryan acknowledged as much last month. We have

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<v Speaker 1>to bring relief to Obamacare as quickly as possible so

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<v Speaker 1>that it stops doing damage not just to the healthcare

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<v Speaker 1>system but to the families of America who need affordable

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<v Speaker 1>health insurance. So that is why we're gonna do is

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<v Speaker 1>do it as well and as fast as we can,

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<v Speaker 1>but make sure that the transition um does not pull

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<v Speaker 1>the rug out from other people. Further complicating matters is

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<v Speaker 1>a lawsuit filed in teen by House Republicans that claims

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<v Speaker 1>the Obama administration has been making unauthorized payments to insurance companies.

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<v Speaker 1>Republicans won before a federal trial judge in the cases

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<v Speaker 1>on appeal. Now, the dispute is the focus of courthouse

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<v Speaker 1>wrangling that could affect how repeal of Obamacare happens. With

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<v Speaker 1>us today. To talk about the litigation and its impact

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<v Speaker 1>on the potential repeal of Obamacare is Abby Gluck, a

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<v Speaker 1>professor at Yale Law School, and Abigail Mindcreef, a professor

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

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<v Speaker 1>the Spectrum Enterprise phone line Spectrum Spectrum Enterprise nationwide fiber

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<v Speaker 1>based network and I T infrastructure solutions. Abby Gluck. Uh,

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<v Speaker 1>first of all, we'll try to keep the two heavy

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<v Speaker 1>straight here. Uh. This is a a complicated case. Complicated

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

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<v Speaker 1>What is it that the House Republicans set in their

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<v Speaker 1>lawsuit that the Obama administration was doing wrong? Okay, great,

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<v Speaker 1>so House versus Burwell is a challenge to what are

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<v Speaker 1>the call the cost sharing reductions provided under the Affordable

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<v Speaker 1>Care Act. Those are payments to insurers that in turns

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<v Speaker 1>translate to UM lower deductibles and co pays uh for

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<v Speaker 1>individual Americans who have insurance policies. And a couple of

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<v Speaker 1>years ago, the House filled the lawsuit saying that the

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<v Speaker 1>funds were not properly appropriated in the Statue of whe

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<v Speaker 1>Thebama administration to actually be paying those uh cost young reductions.

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<v Speaker 1>That's what the case is about, the small level. But

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<v Speaker 1>it's important to also understand that the case is also

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<v Speaker 1>about a huge legal principle that has nothing to do

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<v Speaker 1>with the Affordable Care Act, and that's the ability of

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<v Speaker 1>one House of Congress to sue the President for his

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<v Speaker 1>implementation of the law. House versus Burwell as an unprecedented

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<v Speaker 1>victory for the House of Representatives on that point. There's

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<v Speaker 1>never been a successful challenge UM on that point before.

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<v Speaker 1>So the case is very important regardless of what happens

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<v Speaker 1>to the Affordable Care Act, abigail. So take us through

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<v Speaker 1>the procedural impact of the case until now. Just tell

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<v Speaker 1>us what's happened procedurally, so so precedually so far where

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<v Speaker 1>we are is that the district court granted an injunction

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<v Speaker 1>against the pain of cause and subsidies. First, as as

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<v Speaker 1>Abby Gluck said, UM, the district Court ruled that the

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<v Speaker 1>House had standated challenge the Obamacare aspect of the case.

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<v Speaker 1>There was another aspect of the case where they lost

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<v Speaker 1>their UH, their argument understanding. So they were granted standing.

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<v Speaker 1>And then they won on the merits UM and one

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<v Speaker 1>an injunction against the payment of cast sharing subsidies, the

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<v Speaker 1>district court having ruled that the funds were not in

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<v Speaker 1>fact appropriated UM and UH. And then they stayed, the

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<v Speaker 1>District Court stayed, the UH stayed the order pending the

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<v Speaker 1>appeal and UH and we're currently pending before the the

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<v Speaker 1>federal appeals Court in a DC circuit and UH and

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<v Speaker 1>the House moved recently to to hold the case in

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<v Speaker 1>abeyance pending the transition to the Trump administration, arguing that

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<v Speaker 1>the Trump administration might drop the the appeal, or that

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<v Speaker 1>the House and the Trump administration might be able to

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<v Speaker 1>reach a settlement because with the transition, obviously we would

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<v Speaker 1>have a different perspective venture in the White House. UH,

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<v Speaker 1>it might not be interested in pursuing the appeal any further.

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<v Speaker 1>So the DC Circuit agreed to hold the case in

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<v Speaker 1>a bay in And now we have some interveneers to UH,

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<v Speaker 1>individuals from California who are asking to intervene in the

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<v Speaker 1>litigation to UM to push the DC Circuit to rule

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<v Speaker 1>on the merit regardless of whether the Trump administration might

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<v Speaker 1>be interested in either dismissing or settling the deal. Okay,

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<v Speaker 1>so we've got a lot lot going on here. Let's

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<v Speaker 1>put the interveneers to the side for a second, Abbey,

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<v Speaker 1>collect just talk about what the incoming Trump administration's options

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<v Speaker 1>might be assuming that the interveneers don't don't complicate their plans.

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<v Speaker 1>Given that the president elect to said he wants to

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<v Speaker 1>appeal Obamacare, what might he and what could he do

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

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<v Speaker 1>difficult position. If I were time, I might actually be

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

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

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<v Speaker 1>we're gonna drop the appeal. What happens then it means

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<v Speaker 1>that the House wins. It means the cost sharing payments stop.

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<v Speaker 1>It means the insurers can't afford to be on the

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<v Speaker 1>exchanges anymore and they pull out, and you get insurance

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

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

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<v Speaker 1>He's repealing and delaying. So the Affordable Care Act is

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<v Speaker 1>still going to be operational for the next four years

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<v Speaker 1>maybe um, which means but it won't be able to

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<v Speaker 1>function right if he's cost sharing payments stopped, So he's

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<v Speaker 1>going to have to do what pay the insurers money

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<v Speaker 1>to keep them on the exchanges and not translate to

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<v Speaker 1>exactly the same kind of insurance bail out that he's

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<v Speaker 1>been criticizing for the last two years. He's been He's

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<v Speaker 1>put between a rock and a really hard place. That's

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<v Speaker 1>what I think he should be rooting for the interveners

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<v Speaker 1>to win because if they win, the cost sharing payments

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<v Speaker 1>continue and he sort of get out of this jam

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<v Speaker 1>that the House created when they had an administration that

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

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<v Speaker 1>just a fallo up on that is a settlement possible?

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<v Speaker 1>Could the administration settle in the way that says we

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<v Speaker 1>will continue those payments for you know, a certain period

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<v Speaker 1>of time to have that kind of transition that that

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

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<v Speaker 1>So what's the settlement? A settlement is sure will stay

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<v Speaker 1>the impact of the injunction as long as what the

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<v Speaker 1>affordable character is in existence. So that's a fake victory

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<v Speaker 1>for the House, right. And the reason Trump should not

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<v Speaker 1>want that, right. The reason Trump should not want that

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<v Speaker 1>is that any incoming president should not want the lower

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<v Speaker 1>court decision to stand because the lower court gives Congress

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<v Speaker 1>a lot more power to challenge and incoming a president

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<v Speaker 1>in the court room than it's ever had in history.

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<v Speaker 1>So it's not really in any administration's interest to let

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<v Speaker 1>that lower court decisions stand as an initial matter, which

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<v Speaker 1>is why it is an incentive to appeal. But any

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<v Speaker 1>kind of settlement will just acto be translated to what

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<v Speaker 1>would have been a win for the Obama administration because

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<v Speaker 1>would mean that the car show reductions will continue as

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<v Speaker 1>long as the affordable charec DO is in existence. Of course,

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<v Speaker 1>they can settle it and they can spin it as

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

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<v Speaker 1>be continuing the affordable character as the Obama administration thought

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<v Speaker 1>it was drafted in the first place. So the whole

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<v Speaker 1>thing is sort of an Alice in Wonderland scenario. And Greg,

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<v Speaker 1>I just want to point out that despite the Alice

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<v Speaker 1>in Wonderland scenario, the Senate just released a budget resolution

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

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<v Speaker 1>But but the Obamacare repeal doesn't have a replacement, right,

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<v Speaker 1>exactly exactly key over the four years three to four

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<v Speaker 1>year delay, right, And so I'm not disagreeing with you,

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<v Speaker 1>I'm just I'm just stating what just happened. Well, thanks

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<v Speaker 1>for clarifying that. Our guests are Abigail Mindcreef, who teaches

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<v Speaker 1>at Boston University School of Law, and Abbey Gluck of

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<v Speaker 1>Yale Law School. They're joining us on the Spectrum Enterprise

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<v Speaker 1>phone Line, Spectrum Enterprise Nationwide fiber based network, and I

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<v Speaker 1>T infrastructure solutions. Abigail Moncrief, Abbey was Abby Gluck was

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<v Speaker 1>saying that, uh, that the Trump administration might almost be

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<v Speaker 1>better off if uh, this case went went forward and

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

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<v Speaker 1>be losing in terms of their position on Obamacare, but

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<v Speaker 1>winning in terms of the flexibility they would have. Do

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<v Speaker 1>you agree with that assessment? Yeah, I mean, I think

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<v Speaker 1>I think Abby's put it exactly right when she said

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<v Speaker 1>that the Trump administration is caught between a rock and

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<v Speaker 1>a hard voice. I think they the Trump administration doesn't

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

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<v Speaker 1>But at the same time, I don't think any incoming

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<v Speaker 1>president should say, oh, there's this court order that says

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<v Speaker 1>that the House of Representatives has standing the challenge anything

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<v Speaker 1>I do that might plausibly be illegal or against the

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<v Speaker 1>houses preferred interpretation of the statutory of previsions. So uh,

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<v Speaker 1>you know, let's just let that stand. The Trump is

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<v Speaker 1>the no no incoming presidents, no president should want the

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<v Speaker 1>House of Representatives to be allowed to challenge the the

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<v Speaker 1>executive branches interpretation of a statutory provision. So so if

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<v Speaker 1>I were the administration, regardless of my position on Obamacare,

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

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<v Speaker 1>not through this lawsuit. Uh. And so I you know,

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<v Speaker 1>I think I would be inclined to make a big

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<v Speaker 1>show of yeah, of course we're going to repeal Obambacare,

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<v Speaker 1>but we're not going to do it for this, uh,

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

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<v Speaker 1>they should want to proceed. But by the same token,

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<v Speaker 1>you know, and the Trump administration wants to work with

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<v Speaker 1>Bryan and and and the House, and the House brought

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<v Speaker 1>this lawsuit, so you know, so I don't know what

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

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<v Speaker 1>how is the DC Circuit Court of Appeals likely to

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<v Speaker 1>rule on this emergency motion to intervene? Well, they ruled

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<v Speaker 1>last week, but they did you last week because they

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<v Speaker 1>pushed the time frame up. So what had happened was

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<v Speaker 1>and the interveners came in. There have been some papers

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<v Speaker 1>file that said Okay, basically, let's deal with this after

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<v Speaker 1>the administration takes office. Um and the interveners came back

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<v Speaker 1>and said, no, we have reasons for wanting this to

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<v Speaker 1>happen before, precisely because they're afraid of some settlement that

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<v Speaker 1>would let the decisions stand while still sort of waking

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<v Speaker 1>the same harm on the insured. And by this by

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<v Speaker 1>to one order last week, the d C or for

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<v Speaker 1>the holidays, the d C Circuit came in and said, okay,

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<v Speaker 1>we want the briefing files before the twenties. So they're

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<v Speaker 1>setting themselves up to actually make the decision before. Uh.

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

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<v Speaker 1>at least it sounds like at least two of the

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<v Speaker 1>judges on that panel had heard sort of the timing

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<v Speaker 1>implications that were buried or emphasized in the intervener's briefing,

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<v Speaker 1>and you know, I thought they were reasonable, and it

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<v Speaker 1>pushed the cases on a faster time frame than the

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<v Speaker 1>House had wanted. Abigail that the judges who ruled in

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<v Speaker 1>that case, they're the two Democratic appointees, David Tatol and

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<v Speaker 1>Tree Shrineavasan were the ones who said, uh, you respond

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<v Speaker 1>to this this emergency motion, and Republican appointee Karin Lacraft

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<v Speaker 1>Henderson said, I disagree. Does this case look like so

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<v Speaker 1>many other Obamacare cases where we're gonna see a partisan

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<v Speaker 1>divide on on the Court of Appeals? I mean, it

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<v Speaker 1>sure looks like it so far. Um. I'm I'm surprised

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<v Speaker 1>by it by the two to one split. Um. I

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<v Speaker 1>would think that that some of the big structural issues

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<v Speaker 1>in this case would be um interesting in a kind

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<v Speaker 1>of nonpartisan way. Um. But but it sure looks like

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<v Speaker 1>it's splitting along your party lines so far. Um. And

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<v Speaker 1>is the upshot of that, given given that this is

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<v Speaker 1>a democratic a court with more democratic appointees, that that

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

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<v Speaker 1>I mean I think I think that's exactly right. I.

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<v Speaker 1>Um yeah, I can't. I can't imagine that. You know,

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<v Speaker 1>it is a heavily democratic court. Um. And and so

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<v Speaker 1>if it can, if it maintains this part of the events,

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

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<v Speaker 1>that means we're gonna have more to talk about here

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<v Speaker 1>on Bloomberg Law. As this case goes forward, we will

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<v Speaker 1>keep an eye on it and talk more with our

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<v Speaker 1>guest today, uh Abby Gluck of Yale Law School and

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<v Speaker 1>Abigail Mindcrief of Boston University School of Law. Thank you

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<v Speaker 1>so much for being on Bloomberg Law to talk about

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<v Speaker 1>this case that UH could make the complicated repeal of

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<v Speaker 1>Obamacare even more complicated