Trump’s ACA Executive Order Won’t Affect Obamacare Litigation


One of President Donald Trump’s first official acts, an executive order directing federal agencies to ease Affordable Care Act burdens, shouldn’t have any effect on litigation concerning various aspects of the health-care reform law.

Tom Bulleit, who heads the health-care practice in Ropes & Gray LLP’s Washington office, told me the order has nothing to do with the lawsuits. The Department of Justice is defending numerous claims against the government, ranging from those brought by health insurers seeking ACA risk corridor payments to religious nonprofit organizations that don’t want to be compelled to provide insurance covering products and services they deem sinful.

The Trump DOJ might decide to cease defending the cases, but the agency has had that power all along, Bulleit said. It’s possible the DOJ might use the executive order as “cover” should it stop participating in the cases, but it doesn’t need to, he said.

Tim Jost, a well-known health-policy wonk, said the order may cause the DOJ to review its litigation stance in several cases. But he and Josh Blackman, who opposes the ACA, agreed the executive order doesn’t compel the DOJ to any particular action, even in U.S. House of Representatives v. Burwell, the high-profile case holding that cost-sharing payments the HHS made to insurers were illegal because Congress hadn’t appropriated the money for them. The decision is on appeal, but the appeal has been halted so the Trump administration can weigh in.

Trump’s executive order will no doubt have significant ramifications throughout the health-care industry, but maybe not so much on pending litigation.

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