President Donald Trump is threatening to cancel $7 billion in reimbursements to insurers on the Obamacare exchanges, which would drive up health insurance prices and likely hasten the demise of the ill-crafted policy. According to White House advisor Kellyanne Conway, the president will make his decision this week.
But even if the president decides to keep the subsidies, they may disappear anyway — because of an ongoing court challenge.
The case is U.S. House of Representatives v. Price, et al. (formerly Burwell, et al., after Dr. Tom Price’s predecessor as Secretary of Health and Human Services). Under former Speaker of the House John Boehner, the House sued the Obama administration for spending money on the subsidies that Congress had not allocated, alleging a violation of Article I, Section 9, Clause 7 of the Constitution: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”
Last May, the D.C. District Court ruled that the reimbursements to insurance companies “cannot be inferred” from the text of the Patient Protection and Affordable Care Act of 2010 (i.e. Obamacare). The decision was appealed to the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit), where it sits today.
The Trump administration picked up the case where the Obama administration left off, and the president could simply order the government to drop the appeal at any time. However, on May 22, the Trump administration asked the court for a 90-day extension before it decided what to do, hoping that Congress would find time in those 90 days to repeal Obamacare and replace it with a new policy, rendering the subsidies moot.
Those 90 days run out on August 21. Even if Trump decides to continue the appeal — and the subsidies — it might not matter: the D.C. Circuit could uphold the lower court ruling that the subsidies are unconstitutional, and they will end.
Trump’s threat can best be understood as a negotiating tactic. To borrow from Keanu Reeves in the movie Speed: “Shoot the hostage.”
Trump is showing Congress — and the media — that he is willing to incur the political cost of letting Obamacare crash. They are reacting with shock and horror — which is the desired effect.
Once August 21 arrives, Congress will be as much to blame — and even more so, if he decides to continue the appeal, and it fails.
That is why a group of moderates in both parties, calling themselves the “Problem Solvers,” is proposing a legal, fully constitutional bailout package to save the subsidies. That is not likely to pass in time — but even if it did, the president could veto it, which is what he is indicating he might do.
He wants Republicans to stick to their promise to repeal and replace Obamacare. And as he pressures them to try again, Trump has the Constitution on his side.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He was named one of the “most influential” people in news media in 2016. He is the co-author of How Trump Won: The Inside Story of a Revolution, is available from Regnery. Follow him on Twitter at @joelpollak.