The U.S. House of Representatives’ ongoing attack on the Patient Protection and Affordable Care Act has taken another fascinating turn with fifteen states (plus Washington, D.C.) moving to intervene in House v. Price.  They seek to stand in for the Executive Branch in defense of the ACA’s cost subsidies for lower-income individuals. 

The case, which is on appeal to the D.C. Circuit, is a serious threat to the ACA.  (For more on the threat, see here.)  The House won in the district court, but the subsidies have continued pending appeal (and pending the ongoing legislative efforts to repeal and replace the ACA). 

By his own account, President Trump would like to see the ACA “explode.”  As he sees it, the law is the Democrat’s “property,” not his.  And while he doesn’t “want people to get hurt,” he thinks the onus is on Democrats in Washington to “start calling [him] and negotiating.”  Some “begging” might be in order.  If he wants, he’ll stop the subsidies.  After all, the district courtwas right:  “[i]t wasn’t authorized by Congress.”  When you hold all the cards, the game’s yours to lose.

If the President plans to treat health insurance for millions as a game, the state attorneys general argue in their motion to intervene, then they have a right to be dealt in.  Someone needs to defend the subsidies if states are to plan for “imminent regulatory deadlines.”  (For more the problems of uncertainty, see Rachel Sachs’s commentary.)  And if we take the President’s public statements seriously, the states point out, that someone won’t be the Executive. 

What gives states the authority to stand in for the Executive on appeal?  On the question of Article III standing, the states have firm footing.  If the House wins, the states lose — New York and Minnesota would lose direct federal funding, and all would face increased administrative and healthcare costs, as their motion explains.  These direct injuries should suffice for state standing, much as they would for a private litigant (see here and here).  

Standing’s not the only question, however.  Even if the states have standing, should the Court of Appeals wait to see what happens with the ACA repeal in Congress?  Maybe not, though this uncertainty might give the court pause.  Should the states be able to stand in when the Executive decides not to defend a federal statute?  As partners in cooperative federalism, the states have good reason to defend the ACA’s subsidies.  But doesn’t Article II place the authority to defend federal law in the Executive Branch, not in the states?  Maybe, but it wouldn’t be the first time that someone has stepped in when the Executive refuses to defend federal law. 

In short, there are good reasons to conclude that the states’ motion should be granted.  (For my co-blogger Nick Bagley’s take, see here.) 

Perhaps, though, the federal courts shouldn’t have joined this battle in the first place.  In bringing its lawsuit, the House had a weaker claim to Article III standing than the states seeking to intervene.  The district court, of course, concluded otherwise.  And now fifteen states (plus Washington, D.C.!) seek to intervene and argue the House lacked standing all along.

States standing to defend a federal law against Congress and the President when “lives are at stake”?  Just the latest, fascinating turn that federalism has taken in the Age of Trump, however brief that age may be.  

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