The ACA and Appropriations: Does the Administration Have the Authority?

Administrative Law & Regulation Practice Group Teleforum

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Last month the Trump Administration announced that it will end the Affordable Care Act's government cost-sharing payments to insurers.  These payments are worth billions of dollars per year.  During the Obama Administration, a federal district court determined, in a lawsuit brought by the House of Representatives, that these payments are unlawful because Congress has not appropriated the funds to pay for them.   That decision, however, was stayed pending appeal.  According to a recent White House statement, these payments must cease because "there is no appropriation for cost-sharing reduction payments to insurance companies under Obamacare."  As a policy matter, the results of the Trump Administration's decision may be far-reaching.  An important legal question, however, is whether the Trump Administration is correct that these payments are unlawful. 


In this Teleforum, Andrew McCarthy will argue that the Trump Administration is right about the law -- Congress has not appropriated the funds, and the Executive Branch cannot spend money Congress has appropriated.  On that view, the Obama Administration violated the law by making the payments and it is wrong to blame the Trump Administration for correcting course, no matter one's policy views.   Prof. Daniel Hemel, by contrast, will argue that the Trump Administration has overstated its case and that, in fact, there are serious arguments in favor of continuing the cost-sharing payments.   If so, the Trump Administration's decision itself may not withstand judicial review.   Please join us for this timely and important discussion.  



Prof. Daniel Hemel, Assistant Professor of Law, University of Chicago Law School

Andrew C. McCarthy, Senior Fellow, National Review Institute

Moderator: Prof. Aaron L. Nielson, Associate Professor Law, J. Reuben Clark Law School, Brigham Young University

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