The decision basically extends the life of a fight that is as old as Obamacare. Shortly after the bulk of the law went into effect in 2014, House Republicans sued the Obama administration to stop these payments, which are central to upholding the law and the health of the insurance markets that participate. Now, Democratic attorneys general will sue the Trump administration to keep the federal subsidies.
Trump has openly considered whether to just stop paying those subsidies, which could put him on tricky constitutional and political ground. And health policy experts predict that stopping the payments would cripple the health insurance market and end Obamacare.
The D.C. appellate court took notice of the president's intention. The court's primary reason for allowing state attorneys general to intervene in this court case to try to save Obamacare subsidies was that the states could “suffer concrete injury” if the payments stop.
But the secondary reason was the context of this political moment. The judges said it makes sense for states to launch a court fight to keep Obamacare subsidies because Republicans who don't like these subsidies are in power and because Trump has tweeted he'd like to get rid of them. The lawsuit, the judges said, is "timely in light of accumulating public statements by high-level officials.”
Ahem, Mr. President.
This is becoming a pattern: Judges, when deciding how to rule in politically sticky situations, pull up Twitter and see what the president has said about it.
In June, a federal appeals court ruled not to reinstate the president's' travel ban because he failed to prove the travel ban is so necessary for public safety that it's okay for it to temporarily curtail people's liberties. The court cited one of the president's tweets, right there in the ruling, as an example:
The court read that tweet as Trump saying that his ban is aimed at entire countries, which is not what Trump's lawyers were arguing. The second version of the ban excludes people with green cards, for example.
Earlier courts have cited the president's spoken words in their rulings against him, notes The Fix's Aaron Blake. In April, a federal judge in Kentucky ruled that Trump may have incited violence against protesters at a campaign rally there. Before that, a federal judge in Hawaii decided that Trump's travel ban must be evaluated within the context of everything the president and his allies have said about its motive, specifically whether the ban targets Muslims.
Words are one thing, and Twitter is a relatively new construct for a centuries-old judicial system to consider. But if there was ever legal question of whether the court could incorporate Trump's tweets, former White House press secretary Sean Spicer settled that this summer when he said the president's tweets “are considered official statements by the president of the United States.”
The appeals court ruling against Trumps' travel ban took note of that, too, citing a CNN article pointing out Spicer's declaration that when Trump tweets, we all should take it seriously.
Trump does something else on Twitter that judges haven't explicitly called out in their opinions but likely have taken note of. He routinely questions courts' judgment and authority, especially after a court rules against him. It's a practice that even the person he picked to serve on the Supreme Court, Justice Neil M. Gorsuch, said was “disheartening” and “demoralizing.”
As I wrote in June:
Courts are made up of people, too, and some legal scholars think that in antagonizing them, Trump risks inviting even more legal scrutiny on the intentions of his ban.“The justices will likely feel an instinct to protect their institution,” said Austin Evers, director of the government corruption watchdog group, American Oversight, and a former top State Department lawyer. “And to assert their coequal role in upholding the Constitution.”
Trump is not helping himself when he muses or make threats on Twitter about policy proposals or pending court cases. Advocates on the left are ready to pounce on any opportunity to stop Trump in the courts, and the courts seem ready and willing to listen — or, in the case of this president, read.