DOJ tells high court to stay out of dispute on House v. Burwell appeal

Department of Justice-Washington, D.C.

The Department of Justice has told a U.S. Court of Appeals that it should stay out of an interbranch dispute between the House of Representatives and Health and Human Services Secretary Sylvia Burwell over the issue of lack of payment to insurers for subsidizing cost-sharing incentives in the Affordable Care Act marketplace.

The House v. Burwell lawsuit was brought in 2014 by House Republicans, who in May won their case in U.S. District Court. The lower court said the ACA cost-sharing program reimbursing health insurers wasn't legal because Congress never appropriated the funds to pay them.

The Obama administration appealed the ruling to the U.S. Court of Appeals for the District of Columbia. The DOJ said the district court's approach would "improperly and unnecessarily plunge" the Judiciary into a host of disputes between the political branches.

The court should not get involved in the lawsuit unless and until the House exhausts its legislative tools to bring about its desired result, according to the brief filed this month by Principal Deputy Assistant Attorney General Benjamin Mizer and U.S. Attorney Channing Phillips.

[Also: Obamacare premiums to rise 22 percent, most will be shielded by tax credits]

The issue pertains to insurers' subsidizing of deductibles, copayments and out-of-pocket costs to help lower the price of health insurance coverage for products sold on the ACA exchanges. The ACA established a tax credit and insurer cost-sharing program to help low- and moderate-income residents gain health insurance.

The law requires the government to make payments, but appropriations have covered only the tax credits.

In April 2013, before the ACA went into effect, the Office of Management and Budget submitted to Congress a budget request for 2014 seeking a line item appropriation designating funds for cost-sharing reductions. Congress did not provide the line item.

The case represents the first time a district court has allowed one House of Congress to invoke jurisdiction of an article in court to resolve a disagreement between the political branches over an executive branch execution of a federal law, according to the brief. Before such disputes were resolved through the political process.

[Also: Tax credits, shopping around keep Obamacare marketplace plans affordable, feds say]

"If insurers were not compensated by the government for making the required cost-sharing reductions for eligible individuals enrolled in silver plans, insurers would raise silver plan premiums to fund these required reductions," the brief said.

As it is, Obamacare premiums for the benchmark silver plan are set to spike by an average of 22 percent in 2017 for states using the federal platform, according to a report released Monday by the Department of Health and Human Services.

Marketplace tax credits adjust to account for the increases in benchmark premiums.

However, making up the cost-sharing difference through tax credits would result in billions of dollars in net additional expenditures annually, the court brief said. Federal spending would rise by $47 billion over the next ten years, according to HHS's Office of the Assistant Secretary for Planning and Evaluation.

Twitter: @SusanJMorse