There are now eighteen states and the District of Columbia lined up to challenge the executive order by President Donald Trump to rescind the Obama order giving insurance companies billions in subsidies . . . without an appropriation of Congress. As explained below, this challenge advances a rather curious claim that Trump cannot rescind an earlier order found to be flagrantly unconstitutional by a federal court. In most high-profile litigation cases, counsel spends considerable time exploring whether a challenge will allow a bad case to make bad law on appeal. That would seem the most likely outcome here but much of the litigation by Democratic Attorneys General have been driven more by political than legal calculations. Voters now expect every act of Trump to be challenged and no Democratic AG wants to be the only one to sit out a challenge to an unpopular order. The result is a type of perpetual litigation machine where bad precedent is being cranked out because it is viewed as good politics.
Here is the column: