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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com Slash podcasts. New York and

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Speaker 1: Minnesota are suing the Trump administration over it's one billion

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Speaker 1: dollar cut to the funding for state healthcare programs that

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Speaker 1: serve almost one million low income Americans. The Health and

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Speaker 1: Human Services Department waited until a day before Affordable Care

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Speaker 1: Act payments were due to notify New York in Minnesota

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Speaker 1: by email that more than one billion dollars in annual

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Speaker 1: funding was going to be cut off. That's according to

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Speaker 1: the complaint joining me as Timothy Johs To, professor at

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Speaker 1: Washington and Lee School of Law, tim New York and

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Speaker 1: Minnesota were the only two states that chose to offer

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Speaker 1: these basic health programs. Explain what they are. Yeah, I

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Speaker 1: think people are familiar with the way ways in which

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Speaker 1: most people receive help under the Affordable Care Act, which

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Speaker 1: is either through Medicaid or through the exchanges or marketplaces

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Speaker 1: where people get premium tax credits and and cost sharing

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Speaker 1: reductions to reduce the cost of health coverage and health

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Speaker 1: care if they're financially eligible. But the Affordable Care Act

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Speaker 1: had another possibility, which was the Basic Health Program. And

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Speaker 1: what the way the Basic Health Program works is that

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Speaker 1: states that want to take advantage of this option can

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Speaker 1: receive funding from the federal government to provide health care

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Speaker 1: coverage to people whose incomes are above the Medicaid expansion level,

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Speaker 1: above hundred thirty three percent of the federal poverty level,

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Speaker 1: but not exceeding two h of the federal poverty level.

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Speaker 1: In Minnesota and New York are the only states that

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Speaker 1: have that have opted to do that. But in New

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Speaker 1: York more than seven hundred thousand people are participating. In

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Speaker 1: Minnesota it's about ninety thousand. And for those people, they're

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Speaker 1: receiving health care coverage a lot cheaper and with more

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Speaker 1: options than would probably have been available under the the

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Speaker 1: market places or exchanges. So it's a program that has

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Speaker 1: been a tremendous benefit. But as you said, it's now

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Speaker 1: being threatened by the Trump administration. So in this lawsuit,

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Speaker 1: what are New York and Minnesota claiming, Well, the the

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Speaker 1: states had the option of offering this Basic Health Program UH,

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Speaker 1: and if they did so, the federal government was supposed

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Speaker 1: to give them of the money that the federal government

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Speaker 1: would have spent had the people who become eligible for

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Speaker 1: the Basic Health Program just gone out and enrolled in

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Speaker 1: and private health plans through the exchanges. UM. But it

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Speaker 1: was of the amount that the federal government would have

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Speaker 1: paid in premium tax credits and cost sharing reduction payments.

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Speaker 1: And as as people may be aware, UM, the Trump

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Speaker 1: administration stopped paying insurers the cost sharing reduction payments in

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Speaker 1: October because it argued that the Congress had never appropriated

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Speaker 1: the money for them, and and then it said that

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Speaker 1: it was going to cut off reimbursing the states New

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Speaker 1: York and Minnesota for the cost sharing reduction portion of

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Speaker 1: the money that they're entitled to for funding the Basic

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Speaker 1: Health Program. The problem is that the statute, the way

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Speaker 1: the statute is written, the states are entitled to funding

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Speaker 1: from the federal government, not UH at the amount that

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Speaker 1: insurers would have been reimbursed for reducing cost sharing, which

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Speaker 1: is that that's the reimbursement that the Trump administration cut off,

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Speaker 1: but rather based on the level of help that consumers

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Speaker 1: would have gotten from the cost sharing reduction payments and

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Speaker 1: those that help is still required by law. The insurers

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Speaker 1: are still required to reduce cost sharing even though they're

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Speaker 1: no longer being reimbursed for it. So New York and

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Speaker 1: Minnesota are arguing properly. I believe that under the law

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Speaker 1: they are still owed that money for the Basic Health

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Speaker 1: Program even though the Trump administration has stopped reimbursing insurers.

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Speaker 1: That's awfully complicated, but it is tim what what We

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Speaker 1: don't know what the Trump response will be, the Trump

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Speaker 1: administration response, because they obviously haven't had time to file

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Speaker 1: their papers yet. But what are some possible respe aunces

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Speaker 1: to the lawsuit? Well, I mean, I suppose the possible responses.

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Speaker 1: The is that Congress never appropriated money for the cast

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Speaker 1: sharing reduction payments, and therefore they can't pay the state

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Speaker 1: just like they can't pay the private insurers. Um. But again,

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Speaker 1: that ignores the fact that the statutes are different under

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Speaker 1: which insurers we're being reimbursed and wonder which the state

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Speaker 1: is being paid for its expenses under the Basic Health Plan.

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Speaker 1: Which is to say, it's pretty hard for me to

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Speaker 1: imagine a response, and in fact, the federal government has

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Speaker 1: been pretty unresponsive to New York and Minnesota as they've

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Speaker 1: tried to figure out what what the federal government's argument

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Speaker 1: is here, Jim, looking at we only have that a

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Speaker 1: minute here, but looking at the Affordable Care Act and UM,

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Speaker 1: the Trump administration has under mind various parts of it

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Speaker 1: in various ways. What will be left of it in

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Speaker 1: your opinion in about a year? Well, I mean, right now,

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Speaker 1: some parts of it are doing quite well. There are

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Speaker 1: more states that are thinking of expanding Medicaid UH, and

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Speaker 1: enrollment was pretty much for next year what it was

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Speaker 1: for this year. But I do think that it increasingly

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Speaker 1: is becoming a program that UH is mainly of help

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Speaker 1: to low income people, and the Trump administration, I think

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Speaker 1: needs to step up to the plate to help make

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Speaker 1: sure that the program is of of of help to

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Speaker 1: higher income people as well, who are now being priced

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Speaker 1: out of the market. And there's some proposals before Congress

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Speaker 1: to do that, and hopefully that's the direction will go.

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Speaker 1: Thank you for being here, Tim, that's Timothy Johncey's a

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Speaker 1: professor at Washington in Lea School of Law. If it

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Speaker 1: seems like you've been hearing a lot about jerrymandering lately,

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Speaker 1: you are right There are barrage of court cases challenging

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Speaker 1: congressional maps in Maryland, Michigan, North Carolina, Pennsylvania, Texas, and Wisconsin.

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Speaker 1: Perhaps more important, the Supreme Court, which has been unwilling

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Speaker 1: to tackle partisan jerrymandering, is taking up two cases challenging

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Speaker 1: maps in Wisconsin and Maryland that could set a national precedent.

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Speaker 1: Would it send other maps tumbling down? My guest is

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Speaker 1: Bloomberg News, Supreme Court reporter of Greg's store, Gregg. The

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Speaker 1: courts in recess, so you have some extra time to

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Speaker 1: study this issue. Chief Chief Justice John Roberts does not

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Speaker 1: like courts being the referee in jerrymandering cases. He's called

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Speaker 1: the arguments in those cases sociological gobbledegook. Why has the

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Speaker 1: Court taken two cases this term, Well, because maybe some

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Speaker 1: other members of the Court don't see it that way.

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Speaker 1: The key justice, as is so often the case in

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Speaker 1: these issue, uses Justice Kennedy. The question we're all waiting

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Speaker 1: to find out the answer to is whether he thinks

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Speaker 1: there are are manageable standards so that courts can go

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Speaker 1: in and say this map is to put to partisan

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Speaker 1: but this map isn't. Uh. The Chief Justice UH could

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Speaker 1: join that opinion if if, if Kennedy joins the Court's

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Speaker 1: liberals to say, uh, that there is a way to

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Speaker 1: draw that line. But it's also very possible the Chief

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Speaker 1: Justice will end up in dissent. The Court has heard

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Speaker 1: arguments about the Wisconsin map, which seems to be drawing

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Speaker 1: the most attention. Tell us about those arguments. Yeah, so

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Speaker 1: that that is an argument that happened in October that

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Speaker 1: involves the state legislative map in Wisconsin. Wisconsin Republicans drew

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Speaker 1: it when they, for the first time in decades took over, uh,

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Speaker 1: the both houses of the state legislature, and they had

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Speaker 1: the governor's mansion as well in Wisconsin, and they basically

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Speaker 1: drew it in a way that made it really really

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Speaker 1: hard for Democrats to to take over the state legislature,

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Speaker 1: even if they want to a super large majority. Uh,

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Speaker 1: the Court. Some of us thought, I thought the Court

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Speaker 1: might rule in that case by now. It was in

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Speaker 1: October that they ruled, but that they heard arguments. But

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Speaker 1: instead they decided they were going to also here an

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Speaker 1: additional case, a case out of Maryland that might give

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Speaker 1: them a narrower way to get at the issue. So

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Speaker 1: for the time being, nothing coming out of the court.

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Speaker 1: We're waiting to hear those arguments in the Maryland case,

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Speaker 1: uh in a couple of months now. The Maryland case

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Speaker 1: involved a challenge to a single congressional district drawn by

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Speaker 1: Democrats aiming to oust a Republican incumbent. A lot of

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Speaker 1: election experts were surprised the Court took that case. But

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Speaker 1: can you see reasons why the Court might have taken

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Speaker 1: that case? Yeah, I mean, it is a bit of

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Speaker 1: a head scratcher, but there are at least a couple

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Speaker 1: of possible reasons, and I'm you know, certainly speculating here.

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Speaker 1: One is that, um, the court, win it has dealt

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Speaker 1: with racial jerrymandering cases, has insisted that those challenges be

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Speaker 1: brought district by district. In the Wisconsin case, Democrat it's

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Speaker 1: tried to challenge or trying to challenge the entire map.

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Speaker 1: One possibility, as the Court will decide in the Maryland case, UH,

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Speaker 1: that this is the way you have to do it,

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Speaker 1: is by challenging a single district. The other possibility is

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Speaker 1: a little more political and less less legal, which is

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Speaker 1: that if this is going to be a term where

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Speaker 1: we have a big win for opponents of partisan jurymandering.

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Speaker 1: The Court could use the two cases to side with

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Speaker 1: Republicans in one case and Democrats in the other case,

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Speaker 1: and that might address uh, sort of the concern that

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Speaker 1: Chief Justice Roberts raised, which is that the Court's gonna

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Speaker 1: look like it's it's uh being partisan. However it decides

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Speaker 1: these case cases, and maybe by giving each side one

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Speaker 1: the appearance won't be quite so stark so greg after

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Speaker 1: these two cases, after the decisions come down, is it

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Speaker 1: likely that the Supreme Court will have established a nationwide

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Speaker 1: precedent that would make some other maps, you know, put

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Speaker 1: some other maps in jeopardy. Yes, certainly, if the where

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Speaker 1: it says, uh for the first time that this map

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Speaker 1: in in Wisconsin is so partisan it violates the Constitution,

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Speaker 1: that would set up a new standard that would allow

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Speaker 1: challenges to maps a number of other maps around the country.

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Speaker 1: And and probably even if the Court decides to on

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Speaker 1: the narrower ground and that you can challenge this particular

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Speaker 1: district as being uh too partisan. Uh, It's also possible,

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Speaker 1: of course, that that the Court will say, you know,

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Speaker 1: this really is in an area we should get into.

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Speaker 1: We're not going to allow these sorts of challenges, and

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Speaker 1: then Uh, then of course we're not going to have

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Speaker 1: the sorts of new lawsuits that we might see otherwise.

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Speaker 1: Now would this happen in time to make changes for

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Speaker 1: the elections? So probably in most cases no. Um. The

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Speaker 1: one fight where that might be different is that there

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Speaker 1: is an existing fight in Pennsylvania. A couple of weeks ago,

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Speaker 1: the Pennsylvania Supreme Court struck down a Republican drawing map

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Speaker 1: there is being too partisans but that court based it's

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Speaker 1: ruling on this state constitution. That ruling could go into

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Speaker 1: effect and apply for the election. Uh. The other cases

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Speaker 1: that are out there the way the timeline is working out,

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Speaker 1: including one in North Carolina where a lower court has

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Speaker 1: said that that Republican draw map was too uh, was

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Speaker 1: to partisan. Those cases now seem to be on a

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Speaker 1: timeline where it's more likely that they won't kick in

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Speaker 1: if there is a ruling against jerrymandering until the election.

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Speaker 1: Let's turn to DOCTA for a moment. The Justice Department

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Speaker 1: lawyers took the really unusual step of asking the Supreme

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Speaker 1: Court to directly review a California federal judges order to

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Speaker 1: Homeland Security to resume processing DOCTA renewal applications tell us

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Speaker 1: how unusual that is and where that stands. So it's

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Speaker 1: extremely unusual. The Supreme Court has agreed to expedite its

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Speaker 1: consideration of that, uh, of that petition and will probably

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Speaker 1: say sometime in the middle to the end of February,

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Speaker 1: whether it's going to hear the case on an ultra

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Speaker 1: fast track and bypass the appeals court. The Supreme Court

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Speaker 1: almost never does that. So if you look at the

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Speaker 1: cases where the Court has done that, uh in a

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Speaker 1: standalone case, that is not not when it's already considering

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Speaker 1: an issue. Uh. They're usually pretty extraordinary cases, like say

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Speaker 1: the Nixon tapes case or the President Truman seizure of

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Speaker 1: the steel mills back back in the nineteen fifties. So, uh,

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Speaker 1: the Justice Department has to make the case of the

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Speaker 1: Supreme Court that this is so important and so urgent

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Speaker 1: that we get a decision now that you shouldn't even

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Speaker 1: wait for an appeals court to to consider the issue. So, greg,

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Speaker 1: is it that um? The Supreme Court has said that

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Speaker 1: it will take the case, but it's just a question

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Speaker 1: of whether it will be fast tracked or is it

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Speaker 1: a question of whether it's going to take the case

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Speaker 1: at all. No, I'm glad you asked that. So know

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Speaker 1: that the Court has not said it will take the case.

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Speaker 1: The only thing the Court has done is it has

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Speaker 1: said we will consider the request to take the case

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Speaker 1: on an expedited basis, so that it is at least

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Speaker 1: possible we could agree to hear it this term. But

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Speaker 1: the Court has not in any way agreed to actually

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Speaker 1: hear the arguments, either this term or going forward. And

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Speaker 1: do do does any of that affect the timelines or

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Speaker 1: the the dates for DOCA filings. That's just going forward. Yeah,

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Speaker 1: but so probably not the key. The key thing is

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Speaker 1: so a federal judges, as you said, order the administration

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Speaker 1: to start accepting applications again. The Justice Department, even though

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Speaker 1: it went to the Supreme Court, didn't seek a stay

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Speaker 1: of that ruling. That means that it is now having

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Speaker 1: to comply with that ruling. People are filing new applications

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Speaker 1: to renew their DOCA status even if their DOCA status

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Speaker 1: doesn't expire until June or July. Another unusual move now

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Speaker 1: asking for an injunction. Thanks so much for being here, Greg,

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Speaker 1: Always a pleasure, that's Bloomberg New Supreme Court reporter Greg Store,

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Speaker 1: Thanks for listening to the Bloomberg Law podcast. You can

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Speaker 1: subscribe and listen to the show on Apple Podcasts, SoundCloud,

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Speaker 1: and bloomberg dot com slash podcast. I'm June Rosso. This

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Speaker 1: is Bloomberg. M hm