A federal appeals court this afternoon questioned whether Democratic states have the right to appeal a court ruling that declared all of Obamacare unconstitutional.
In a surprise move that legal experts said added an unexpected threat to the 2010 health care law, the 5th U.S. Circuit Court of Appeals asked both sides to file additional legal arguments about who — if anyone — has standing to appeal the December lower court ruling.
The request suggests that the judges who will hear the case — the three-judge panel has not been made public — could toss out the appeal on procedural grounds. In that case, the lower court ruling would stand.
The implications of such a decision for the future of the Affordable Care Act are difficult to parse without more information, according to legal experts. But most suggested that it wouldn't bode well for supporters of Obamacare.
“The odds that the Fifth Circuit does something nasty to the health-reform law have gone up,” Nicholas Bagley, a professor at the University of Michigan Law School who has followed the case closely,
The Trump administration's initial position on the lawsuit brought by more than a dozen GOP-run states was that only the insurance protections, including the prohibition on discriminating against individuals with preexisting medical conditions, should be struck down. But in an expansion of the legal fight in March, the Justice Department declined to join the appeal and backed the lower court ruling dismantling the ACA.
In its order today, the 5th U.S. Circuit Court of Appeals is requesting additional briefs arguing whether the 16 states and the District of Columbia that appealed the lower court ruling have standing to bring the challenge. The judges also want the parties to weigh in on whether the House of Representatives, which joined the appeal after Democrats won control of the chamber last year, has standing in the case.
The court filing also indicated that the parties should be prepared to address the standing questions during oral arguments scheduled for July 9 in New Orleans. The parties have seven days to file the additional briefs.
Eleven of the 16 active judges on the 5th Circuit are Republican appointees, including five named to the bench by President Donald Trump.
Katie Keith, a professor at Georgetown Law who has written extensively about ACA legal issues, said the optimistic interpretation for supporters of the ACA is that the appellate court is simply paying deference to a recent Supreme Court ruling addressing standing that’s cited in the new order.
“They want to cross their T’s and dot all there I’s,” Keith said, “so that it's not grounds to somehow overturn whatever decision they're going to make.”
Article originally published on POLITICO Magazine