//  8/3/17  //  Quick Reactions

Two days ago, the D.C. Circuit granted a motion from a group of fifteen states, led by California, to intervene in the pending appeal in House v. Price. As I explained when the motion was filed, allowing the states to intervene will prevent the Trump administration from unilaterally dismissing its appeal in the case.

That’s a big deal. If the Trump administration wanted to stop making cost-sharing payments, the easiest way to do so would be to dismiss the appeal. The lower court entered an injunction to stop those payments, but put its injunction on hold to allow for an appeal. If Trump were to order the appeal’s dismissal, the injunction would spring into force, and the payments would end.

Now the states can keep the appeal alive, even if Trump wants to get rid of it.

When the states asked to intervene, it wasn’t totally clear they should be allowed to do so. Intervening in a case that’s already on appeal is strongly disfavored. I nonetheless thought the states had a good case—and so did the D.C. Circuit, for the same reasons:

[T]he States have raised sufficient doubt concerning the adequacy of the Department’s representation of their interests. Indeed, the Department nowhere argues in its intervention papers that it will adequately protect the States’ interests or even continue to prosecute the appeal. Such “equivocat[ion] about whether” the Department will continue to “appeal the adverse ruling of the district court” or will otherwise protect the intervenors’ interests, Smoke v. Norton, 252 F.3d 468, 471 (D.C. Cir. 2001), constitutes at least the requisite “minimal” showing that the Department’s “representation of [the States’] interest ‘may be’ inadequate.” Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972) (emphasis added). …

… [T]he States’ motion is [also] timely. … Where, as here, substantial doubts about the inadequacy of representation develop after the case has begun, timeliness is measured from when the potential inadequacy of representation develops. … The States have filed within a reasonable time from when their doubts about adequate representation arose due to accumulating public statements by high-level officials both about a potential change in position and the Department’s joinder with the House in an effort to terminate the appeal.

In other words, President Trump’s loose lips have once again created problems for his lawyers. Go figure.

Now, the Trump administration could probably stop the payments, with or without the pending appeal. The administration could simply announce that, after a thorough review, the Justice Department has concluded that no appropriation exists to continue making the payments. Although there’s a regulation on the books requiring payments to be made, the absence of an appropriation would likely prevent the administration from following through.

Politically, however, it’d be awfully convenient to blame the courts. The D.C. Circuit’s decision takes that approach off the table. If Trump wants to end the payments, it’ll be on his head.


Knock it off, Idaho. (But carry on, Idaho.)

3/9/18  //  Commentary

The Trump administration won't look the other way as Idaho ignores the Affordable Care Act. But it's hoping to adopt a rule that will allow Idaho to achieve the same goal by other means.

Nick Bagley

University of Michigan Law School

Versus Trump: California Versus The Wall [UPDATED WITH EPISODE]

3/8/18  //  Commentary

On a new episode of Versus Trump, Easha, Jason, and Charlie discuss a recent district court opinion that rejected California's challenge to the Trump Administration's expedited border wall projects in California. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

Opioids and Unorthodox Civil Procedure: Will the MDL solve the crisis?

3/7/18  //  Commentary

The opioid litigation may be the starkest example yet of the power of large multi-district litigations and the unorthodox role that judges assume in them.

Abbe Gluck

Yale Law School