The Health 202: An Obamacare lawsuit would make it easier for House Democrats to sue Trump over a border wall


A groundbreaking Obamacare case from 2015 could provide the legal underpinnings House Democrats need to sue President Trump if he moves forward with building a border wall.

It was in House v. Burwell that a federal judge said — for the first time  — that Congress may sue the executive branch over spending money it hasn’t appropriated. That case had to do with health insurance subsidies, and was brought against the Obama administration by the House when Republicans controlled it. The lawsuit ultimately ended in a settlement after President Trump took office.

That ruling probably has opened the door to a lawsuit from the now Democratic-led House if Trump follows through on his threats to declare a national emergency and start building a border wall without congressional consent. And that remains a distinct possibility: Negotiations to reopen the government remained stalled over the weekend and the president appeared to dig in to his position, despite urging from even Sen. Lindsey Graham (R-S.C.) to cut a deal with Democrats.

A few of Trump’s Sunday tweets:

ABC White House correspondent Tara Palmeri:

“With Trump determined to deliver on his signature campaign promise of building a border wall and Democrats standing firm against what they view as an immoral and ineffective solution to illegal immigration, there is no end in sight to the dysfunction,” my colleagues Bob Costa, Josh Dawsey, Philip Rucker and Seung Min Kim wrote. (See my colleague Jacqueline Alemany’s newsletter this morning for a list of Trump’s dwindling options.)

Things are so gridlocked that House Democrats are already considering what they’d do if Trump declares a national emergency to redirect public money toward a border wall. The issue isn’t whether the president can declare an emergency — he has broad powers to do so — but rather what leeway that might give him to fund his pet project.

“There’s no question he’s allowed to claim there is an emergency,” Sam Berger, a senior adviser at the liberal Center for American Progress who served as a lawyer at the White House Office of Management and Budget in the Obama administration, told me. “What’s illegal is when he claims that emergency lets him spend money in a way that Congress hasn’t authorized.” 

That’s exactly the contention House Republicans made about the Obama administration when they argued that then-Health and Human Services Secretary Sylvia Mathews Burwell was using dollars unappropriated by Congress to fund what are known as “cost-sharing reductions,” or, CSRs. That money was provided under the Affordable Care Act as a way of helping the lowest-income Obamacare customers finance extra costs associated with their health plans beyond the monthly premium, such as deductibles or co-pays.

When the House first filed its lawsuit in November 2014, it was unclear whether the lower chamber even had authority to sue the executive branch. But U.S. District Judge Rosemary Collyer charted new legal territory when she ruled the House has standing to file such a lawsuit if it believes the executive branch has spent money it didn’t approve.

“Neither the president nor his officers can authorize appropriations; the assent of the House of Representatives is required before any public moneys are spent,” Collyer wrote in September 2015.

The lawyer who represented Republicans in the case told me House Democrats probably would have standing to sue the Trump administration over building a wall – even though he called a such a potential challenge “ill-conceived.”

“I believe the House has legislative standing in this matter but that does not mean they have a good case to bring,” Jonathan Turley wrote me in an email over the weekend.

“Frankly, my greatest concern is that the House leadership does not fritter away this precedent in an ill-conceived challenge,” he added. “They need to consider the possibility that they could not only lose on the merits but undermine one of the most important rulings on legislative standing in history.”

But liberal legal experts contend that should Trump use unappropriated dollars to pay for a wall, it would be a much clearer breach of Congress’s power of the purse than when the Obama administration funded the CSRs.

Even if Congress hadn’t set aside funding specifically for those subsidies, it had at least authorized them as part of the ACA. But in this case, Congress hasn’t passed a law creating a border wall — let alone set aside money to pay for it.

To Berger, it’s a clear distinction.

“There was money there and we were fighting over what we were authorized to do with that money,” Berger told me. “Trump’s saying ‘I want money for the wall’ and Congress is saying no  and he’s saying ‘Well then I’m going to ignore you and do it anyway.’”


AHH: A U.S. judge in California yesterday temporarily blocked Trump administration rules in 13 states that would allow most employers to opt out of providing workers with free birth control under the ACA. 

The Trump administration had finalized the rules in November to expand the number of businesses that could claim exemptions from the birth control requirement, changing a controversial Obama administration policy that conservatives said restricted religious freedom.

“Judge Haywood Gilliam granted a request for a preliminary injunction by California, 12 other states and Washington, D.C.,” AP’s Sudhin Thanawala writes. “The plaintiffs sought to prevent the rules from taking effect as scheduled on Monday while a lawsuit against them moved forward. But Gilliam limited the scope of the ruling to the plaintiffs, rejecting their request that he block the rules nationwide…The changes would allow more employers, including publicly traded companies, to opt out of providing no-cost contraceptive coverage to women by claiming religious objections. Some private employers could also object on moral grounds.”

The order temporarily blocks the rule in California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Minnesota, New York, North Carolina, Rhode Island, Vermont, Virginia, Washington state, and Washington, D.C.

OOF: Between six and seven million people across the country have been sickened by the flu, federal health officials estimate. Among those who sought medical attention, between 69,000 and 84,000 were hospitalized, the Centers for Disease Control and Prevention said Friday.

It’s the first time the agency has released estimates during the flu season “to underscore the risks of serious complications of the respiratory virus and to encourage people to get vaccinated,” our Post colleague Lena H. Sun reports, adding the CDC usually releases data at the end of flu season. The estimates don’t include flu-related deaths.

“We decided that this year, we would try to release these preliminary numbers of illnesses each week so that we could give people a better picture,” said Alicia Fry, the head of the agency’s epidemiology and prevention branch in the influenza division.

“Flu season is not over, and it’s not too late to get vaccinated, Fry said. A flu shot can prevent infections and also reduce the severity of complications, including death, from the disease,” Lena writes. “Even if someone gets sick with flu, antiviral drugs may be an option, she said, especially for people who are at high risk of serious flu complications, including young children, adults 65 and older, pregnant women and people with certain medical conditions such as asthma, diabetes and heart disease.”

OUCH: In a 911 call released by Phoenix police, nurses at the Hacienda Healthcare facility can be heard screaming for help, warning that they weren’t prepared for their patient — a 29-year-old woman in a vegetative state — to go into labor.

The call, first obtained by ABC affiliate KNXV, “provides a window into the birth that has rocked the city and the nonprofit health-care organization that has taken care of the medically fragile for five decades,” our Post colleague Cleve R. Wootson Jr writes. “The news has put the facility — started in the 1960s as Hacienda de los Angeles, or ‘the dwelling of the angels’ — under a harsh spotlight.”

The state’s health department has increased security measures with more staff and monitoring at the facility. No suspect or arrest has been announced. And in the meantime, state officials are “reevaluating the state’s contract and regulatory authority as it relates to this facility and have been working closely with state agencies to ensure all necessary safety measures are in place,” a spokesman for Arizona Gov. Doug Ducey (R), said in a statement.

Arizona investigators are also looking into $3.4 million in possible Medicaid fraud by the nursing facility’s parent company, the New York Times’s Matthew Haag reports.

In 2016, investigators began examining whether the company overcharged the state’s Medicaid program after it “improperly shifted overhead expenses in the company to a subsidiary at the same location,” Matthew writes. “Nearly three years after the inquiry began, the state and the company are still locked in a legal battle. Hacienda officials have refused to turn over thousands of pages of internal financial documents sought by the state in multiple subpoenas, arguing that the requests are burdensome and beyond the state’s investigative scope. The state has said the investigation cannot be completed without them.”


— Benefits for the nearly 39 million people who receive food stamps will be distributed weeks earlier than usual in a Trump administration move to ensure February benefits get distributed during the partial government shutdown.

State agencies, in charge of administering food stamps, may start paying them out even before Jan. 20, the date announced by the Agriculture Department, because it falls on a holiday weekend and Sunday. States are planning to give out benefits on Friday or maybe earlier, Politico’s Helena Bottemiller Evich reports

But the solution could create another set of problems. “The workaround creates serious logistical and communication challenges and could lead to widespread confusion about how benefits in the Supplemental Nutrition Assistance Program, formerly known as food stamps, will be distributed in coming months, if the spending impasse continues,” she writes. “The federal government has experience issuing SNAP benefits on short notice in a single state or region in response to natural disasters, but a single payout of this size and scale is uncharted territory — offering a new window into the shutdown’s far-reaching effects.”

Grocery stores are preparing not only for an influx of shoppers but for communicating the change to food stamp beneficiaries who may be confused about the extra benefits.

— The Veterans Department is looking to direct billions of dollars into private care to make it easier for veterans to get care from private health-care providers with the government paying for it, the New York Times’s Jennifer Steinhauer and Dave Phillips report.

The proposal would allow veterans access to a system of potential walk-in clinics that would require co-pays. “For individual veterans, private care could mean shorter waits, more choices and fewer requirements for co-pays — and could prove popular,” Jennifer and Dave write. “But some health care experts and veterans’ groups say the change, which has no separate source of funding, would redirect money that the current veterans’ health care system — the largest in the nation — uses to provide specialty care.”

They add that such a move would also be a win for the Koch-funded advocacy group Concerned Veterans for America, which has long pushed for private health care for veterans.

— The Trump administration has removed all unaccompanied migrant teens from the Tornillo camp, a massive tent camp in Texas, weeks after a federal watchdog raised health and safety concerns about the camp, our Post colleague Maria Sacchetti reports. The camp, which held 2,800 teens just three weeks ago, will close later this month.

About 5,500 of the 6,200 Central American teens who were housed in the camp since June “have been released to a parent or guardian inside the United States to await a decision in their immigration cases,” Maria reports.

Immigrant advocates told Maria the government is still holding teens in other shelters, and that 700 of the teens that were being kept at Tornillo were transferred to other facilities overseen by the Health and Human Services Department.

“Lawmakers and others who have criticized the camp cheered its impending closure Friday and said the government should have moved faster to release its occupants,” Maria writes.

Former congressman Beto O’Rourke (D-Texas), a potential 2020 candidate whoadvocated for the facility’s closure, called the closing “good for these kids and their families”:


— D.C. lawmakers have scheduled a hearing to investigate the District’s response to the rise in opioid-related deaths in the city’s African American neighborhoods, our Post colleague Peter Jamison reports. The scheduled hearing follows Peter’s report that D.C.’s public-health agencies came up short in dealing with the opioid crisis.

“D.C. Council members Charles Allen (D-Ward 6) and Vincent C. Gray (D-Ward 7) — chairmen of the judiciary and health committees, respectively — said the hearing would give legislators an opportunity to probe the reasons for the failures that were documented by The Post, as well as to seek information about how the administration of Mayor Muriel E. Bowser (D) plans to more effectively reduce drug fatalities,” Peter writes. “Gray said he was particularly concerned about whether the city, in light of its past inaction, was prepared to spend the $21 million it expects to receive this year from the federal government to address the opioid epidemic.”

Peter also reports on a bill introduced last week by D.C. lawmakers that would require officers in the District to carry naloxone, the lifesaving overdose antidote. The bill was introduced by eight of the council’s 13 members and would have police officers in three wards at the center of the opioid epidemic carry naloxone.

Police administrators expressed opposition to a similar measure that was considered in the council’s last session.

“The administration of D.C. Mayor Muriel E. Bowser (D) opposes the measure,” Peter writes. “In a written statement to The Post Friday morning, Deputy Mayor for Public Safety and Justice Kevin Donahue did not cite specific reasons for the mayor’s position, beyond saying that the District’s police and fire departments believe providing police officers with naloxone ‘is not the right solution for our community.’ ”

— And here are a few more good reads: 






Coming Up

  • Brookings India and Tufts University hold a roundtable on ‘Opportunities for India Beyond 2019: The Future of Health and Geopolitics’ on Tuesday.
  • The Council for Affordable Health Coverage and the Partnership for Employer-Sponsored Coverage hold a summit on health policies and politics in the 116th Congress on Tuesday.
  • The Senate Special Committee on Aging is scheduled to hold a hearing in fighting elder fraud on Wednesday.
  • Politico hosts an event on health care innovators on Wednesday.


A federal employee with colon cancer grapples with complicated insurance problems as a result of the partial government shutdown:

Politicians continue to shift blame as longest shutdown in history drags on