Opinion: New Trump resistance tactic: Suing the president for not violating a judge’s ruling

California Atty. Gen. Xavier Becerra appears never to have met a Trump administration policy he didn’t like to sue. On Friday, Becerra joined the attorneys general from 17 other states (plus the District of Columbia) in a lawsuit against the administration’s decision Thursday to stop reimbursing health insurers for the subsidies they give millions of low-income customers for their out-of-pocket costs.

Previously, Becerra had sued the administration over its actions on the contraceptive mandate, the Deferred Action for Childhood Arrivals program, the border wall, the travel ban — the list goes on and on.

There’s one obvious problem with the newest lawsuit, though: A federal court has ruled that the administration had violated the Constitution by paying the reimbursements, which total about $7 billion annually. So the attorneys general are suing Trump for, ummm, not doing something unlawful (at least in one federal judge’s eyes).

When asked about that during a press conference, Becerra and Massachusetts Atty. Gen. Maura Healey (no relation) pointed to two laws and a constitutional principle that the administration allegedly violated with its declaration Thursday.

The first law at issue is the Affordable Care Act (also known as Obamacare), which created the “cost-sharing reductions” for certain low-income Americans. To be eligible, you must not be covered by a large employer’s group plan, your income must be no more than 200% of the federal poverty level, and you have to buy comprehensive coverage through a state Obamacare exchange, such as Covered California. The law requires insurers to provide the reductions, which reduce the deductibles and other out-of-pocket expenses. But it also states that the federal government “shall” cover the cost.

That may not be as binding as it sounds. The law didn’t provide a funding source for the subsidies, and under some court rulings, there’s no entitlement without a permanent appropriation. Underscoring that point, the ACA provided a permanent appropriation for a different subsidy: the tax credits that help low- and moderate-income Americans pay their premiums.

That’s why the House Republican leadership sued the Obama administration for making the reimbursements after Congress declined to appropriate money for them. The GOP argued that Congress’ constitutional power of the purse was being usurped, and last year U.S. District Judge Rosemary M. Collyer in Washington, D.C, agreed. Still, she put her ruling on hold pending an appeal, which the White House announced Thursday that it would not pursue any further.

Undaunted, Becerra insisted that the ACA “makes very clear” that the out-of-pocket subsidies “are required.” In fact, he said, the ACA can’t function properly without them, because they work in tandem with the law’s premium subsidies.

Like the Obama administration, Becerra and his allies believe Collyer misread the constitutional principle at issue. To them, the ACA mandates the reimbursements, and the president is obligated to carry out the law’s dictates. “The president can’t pick and choose which law he chooses to follow,” Becerra said.

And then there’s the Administrative Procedure Act, which governs how executive-branch agencies make decisions. The Trump administration has already run into a number of APA minefields — see, for example, the federal court ruling that stopped the Bureau of Land Management from halting enforcement of a rule on greenhouse gas emissions from drilling rigs on federal land. Presumably, the argument is that the Department of Health and Human Services didn’t jump through the correct procedural hoops before announcing that the reimbursements would stop.

It wouldn’t be at all surprising to find that the administration violated the Administrative Procedure Act here. Still, Becerra et al. have to persuade the courts that the administration wasn’t free to abide by Collyer’s ruling, which California and numerous other states were appealing alongside the Trump administration.

They’re seeking a temporary restraining order soon to prevent the reimbursements from being cut off in about a week, so we’ll have the first clue soon whether this is a long-shot claim.

By the way, Becerra may be the attorney general with the least at stake in the outcome. Anticipating President Trump’s move, Covered California worked out a surcharge with insurers that will raise “Silver” plan premiums by 12.4% on average next year to cover the cost-sharing reductions. Although an estimated 65,000 Californians have Silver plans, more than half of them won’t feel any increase because they receive premium subsidies from the feds. The rest are being encouraged to buy nearly identical policies outside Covered California, where the surcharge will not be applied.

jon.healey@latimes.com

Twitter: @jcahealey