This week the Trump Administration will have to make decision on what to do with the House v. Burwell.  House v Burwell is the House of Representative’s efforts to cut off funding to insurers that help reduce the cost of health insurance premiums for some people purchasing health insurance through the ACA.   House Republicans had filed the action in 2014 under Speaker John Boehner.  The charge is that the Administration does not the authority to spend the money short of a congressional appropriation.  A lower court has held with the House members but House leaders filed for delays after the election in an effort to give both the new President and Congress more time to figure out what their next steps will be.  Failure to repeal the ACA by the January deadline now makes this case more significant.

Next steps could include the Trump Administration dropping their challenge to the House suit but that would mean that a lower court ruling stands which in turn would allow for the cut-off of funding which in turn would damage access to health insurance through the ACA.  Since Congress is still far from a repeal bill, a decision by the Trump Administration to drop the legal challenge might require a congressional recue with an appropriation.  Not the most appealing option for Congressional leaders who wanted to repeal the ACA by January.

Other timing issues could also complicate the ACA repeal strategy.  The FY 2017 budget resolution established the reconciliation directive that allows Congress to repeal the ACA through reconciliation rules (nullifying the Senate’s ability to filibuster). While the January 27 deadline to act on the reconciliation/repeal of the ACA isn’t binding there is another provision in budget rules that may be causing havoc with plans to pass two reconciliation bills.

A second reconciliation will be used to pass a tax package in addition to some potential big cuts to entitlements.  To get that second reconciliation Congress will have to write a reconciliation instruction in the FY 2018 budget resolution.  The problem is that Congress must pass the first reconciliation before they write a budget resolution for FY 2018.  The easy solution is to delay writing a budget resolution for FY 2018 but that would delay beyond the legal deadline—which is supposed to be complete by April 15—and would delay all the appropriations process for 2018.  The longer it takes to use the first reconciliation for repeal of the ACA, the longer before they can take up a budget resolution and a second reconciliation and complete appropriations for FY 2018.