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House Democrats Want House to Lose in Health Care Lawsuit

By Todd Ruger, CQ Roll Call

December 8, 2015 -- A group of 11 House Democrats on Tuesday urged a federal district court to rule in favor of the Obama administration in a lawsuit over the 2010 health care overhaul and the appropriations process.

The amicus brief from lawmakers, including Democratic leader Nancy Pelosi of California and Minority Whip Steny H. Hoyer of Maryland, highlighted the lawsuit's unusual nature. The Republican-led House filed the case against the Obama administration. Democratic members want the House to lose the case.

The lawsuit alleges that the secretaries of Health and Human Services and Treasury are spending $175 billion on insurers over 10 years without congressional approval.

The Democrats' brief filed Tuesday argued that the health care law provides that the government will reimburse insurers and fund it out of a permanent appropriation. That permanent appropriation provides funds for the cost-sharing reductions that are essential to the health care law's effective operation, the brief said.

Congress has never tried to remedy the situation, the lawmakers said.

"Although the executive branch has been using this permanent appropriation to reimburse insurers for those cost-sharing reductions, the House has at no point considered, and Congress has never passed, a law prohibiting the executive branch from making these payments," the Democratic lawmakers stated in the brief.

Other Democrats who signed onto the amicus brief are James E. Clyburn of South Carolina, Xavier Becerra of California, Joseph Crowley of New York, Nita M. Lowey of New York, Robert C. Scott of Virginia, Frank Pallone Jr. of New Jersey, John Conyers Jr. of Michigan, Louise M. Slaughter of New York, and Sander M. Levin of Michigan.

U.S. District Judge Rosemary M. Collyer appears ready to rule on the case within months. Collyer, in an earlier decision that allowed the House to pursue the lawsuit, wrote that the facts were not in dispute and the case could be decided on its merits in months. She rejected Justice Department lawyers' request to appeal her decision.

The House and the Obama administration have both filed motions for Collyer to rule in their favor.

The House suit asks the court to declare that the president acted unconstitutionally in making payments to insurance companies under Section 1402 of the health care overhaul and to stop the payments.

The dispute focuses on two sections of the health care law that subsidize the costs of people who enroll in marketplace coverage. The administration said it could make Section 1402 payments, which reduce the out-of-pocket costs of consumers whose income is up to 2.5 times the federal poverty level, from the same account as Section 1401 Refundable Tax Credit Program payments. Those credits discount the monthly premiums for people with income from the federal poverty level to four times the poverty level. House Republicans say the health care law doesn't permit the tax credit account to subsidize deductibles and other out-of-pocket costs.

The Obama administration, during the fiscal 2014 appropriations process, initially asked Congress for a separate line item for the cost-sharing payments in Section 1402. Congress did not include money for such a line item.

The case is U.S. House of Representatives v. Sylvia Burwell, et al., Case No. 14-1967.

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