Court Of Appeals Ponders: Who Has Right To Defend ACA?

NEW ORLEANS (AP) — A federal appeals court on Wednesday requested written arguments on whether the House of Representatives and numerous Democratic-leaning states can step in to appeal a federal judge's ruling that struck down President Barack Obama's health care law.

The question posed to lawyers on both sides of the "Obamacare" legal battle is significant because President Donald Trump's administration isn't defending the Affordable Care Act. The filing at the 5th U.S. Circuit Court of Appeals in New Orleans also raises the question of whether there is a legitimate "live case or controversy" to be decided, and what the "appropriate conclusion" of the case should be if nobody involved can legally appeal the December ruling by Texas-based U.S. District Judge Reed O'Connor striking down the law.

Arguments are set for July 9. The names of the three judges who will consider the case have not been released.

O'Connor ruled that the entire health care law was rendered unconstitutional by a 2017 congressional repeal of its unpopular tax penalties on people who remain uninsured. Texas is leading about 20 Republican-led states that filed suit in the case and that are arguing to uphold O'Connor's ruling. Two individual people opposed to "Obamacare" also sued and are part of the case. On the other side, California's attorney general is leading 20 states seeking to overturn O'Connor's ruling.

O'Connor said that without a tax penalty, the law's requirement that most Americans have insurance is unconstitutional, and that the whole law falls as a result.

Whatever the result at the 5th Circuit, the case is expected to wind up at the Supreme Court.

Matthew Brown, a health care lawyer and adjunct professor of law at Tulane University, said ACA supporters "are probably feeling some concern" at the appeals court's questions. But, he added, that observers shouldn't read too much into the filing. "It does not necessarily telegraph one way or the other which way they're going to rule," Brown said.

Even if they decide that the House and the states supporting the law cannot appeal, the 5th Circuit judges would still have a question of the constitutionality of the law before them, Brown said. "And if they don't decide, I think it's something the United States Supreme Court might be interested in," he said.

The effects of O'Connor's ruling have been on hold pending appeals. If the ruling is allowed to stand in its entirety, more than 20 million Americans would be at risk of losing their health insurance. And popular provisions of the law, including mandatory coverage of pre-existing conditions would go away.

In their appeal, California Attorney General Xavier Becerra, 20 other state attorneys general and the House have argued that zeroing out the penalty does not make the individual mandate unconstitutional; they note that the framework for the tax remains in place. And even if the individual mandate were unconstitutional, the rest of the law remains legally viable, they argued in briefs earlier this year.

It's not the first time the legal standing of those involved in the case has been an issue. The health care law's supporters say neither the anti-ACA states nor the individual opponents have standing to sue.

The ACA opponents tried once before to block the House from taking part in the case. A single 5th Circuit judge rejected their motion and allowed the House to intervene in a February order.