Is Another Court Loss on ObamaCare on the Horizon?

The alert reader may recall that last year, the House of Representatives won a court victory in an ObamaCare-related lawsuit. The judge agreed with the House that President Obama had illegally given cost-sharing subsidies to insurers without Congressional organization.


Obama appealed that decision, and President Trump has threatened to drop the appeal, calling the payments “bailouts” for health insurers. But three Obama appointees just tied Trump’s hands considerably, by allowing lefty attorneys general from several states to intervene in the case:

A U.S. appeals court on Tuesday allowed Democratic state attorneys general to defend subsidy payments to insurance companies under the Obamacare healthcare law, a critical part of funding for the statute that President Donald Trump has threatened to cut off.

The U.S. Court of Appeals for the District of Columbia Circuit granted a motion filed by the 16 attorneys general, led by California’s Xavier Becerra and New York’s Eric Schneiderman.

True to leftist form, the Democrat-appointed judges’ reasoning seems driven by extrajudicial concerns about the viability of ObamaCare, rather than by the constitutionality of the payments:

The order issued by the three-judge panel, all Obama appointees, said the states had shown “a substantial risk that an injunction requiring termination of the payments at issue here … would lead directly and imminently to an increase in insurance prices, which in turn will increase the number of uninsured individuals for whom the states will have to provide health care.”

“In addition, state-funded hospitals will suffer financially when they are unable to recoup costs from uninsured, indigent patients for whom federal law requires them to provide medical care,” the court order said.

Nicholas Bagley, a professor at the University of Michigan Law School, said the decision was a “big deal” because it makes it difficult for the Trump administration to settle the case.

“Allowing the states to intervene will increase the pressure on the administration to keep making the cost-sharing payments,” he said, noting that the administration could still stop making the payments.


This decision is not good news for the rule of law. It appears to be a harbinger of an ideologically driven ruling in favor of the illegal payments.

Eventually, the case will probably make its meandering way up to the Supreme Court, where John Roberts will again team up with the liberals to apply the venerable legal principle “Quicquid adjuvat Obamacare lex” or “Whatever helps ObamaCare is the law.” (Note to Latin scholars: that’s according to a Google translating app that is probably wrong. If you’re looking for accurate scholarship in the area of the Latin language, you might be reading the wrong writer. As the Romans said: “Patterico numquam petita esse latinis instructum.”)

Score another loss for the good guys on health care. Again.



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