Must-Read: Nicholas Bagley: Taking the Nuclear Option Off the Table

Must-Read: I am now hopelessly confused.

I get that it Trump drops the appeal—and if states have not intervened—that the executive is thereafter enjoined from paying the cost-sharing payments.

But I did not think that the executive was required to pay the cost-sharing payments. It was simply not required not to pay the payments. If the Justice Department decides that the House is right as a matter of law, what stops Trump from accepting that legal advice and stopping the cost-sharing payments?

I would have thought that the states would not only have to intervene, but to obtain an injunction requiring Trump to continue to pay the cost-sharing payments until final adjudication is attained.

So I am hopelessly confused here…

Nicholas Bagley: Taking the Nuclear Option Off the Table: “Last Thursday, fifteen states and the District of Columbia moved to intervene in House v. Price… http://theincidentaleconomist.com/wordpress/taking-the-nuclear-option-off-the-table/

…This is a bigger deal than it may seem, and could offer some comfort to insurers that are in desperate need of it. Apologies for the long post, but the law here is complex and uncertain…. The district court sided with the House and entered an injunction prohibiting the payments. The court, however, puts its injunction on hold to allow for an appeal. The Trump administration has now inherited the lawsuit…. If Trump drops the appeal, which he has threatened to do, the injunction would spring into effect and the cost-sharing payments would cease immediately, destabilizing insurance markets across the country. It’s the nuclear option.

If the states are allowed to intervene, however, they could pursue the appeal even if Trump decides to drop it. With the appeal in place, the injunction couldn’t take effect until the case is heard and decided…