Defending ‘Obamacare’? No. But US wants appeal kept alive

NEW ORLEANS (AP) — The U.S. House of Representatives and 20 Democratic-leaning states have no right to appeal a federal judge's decision that struck down President Barack Obama's health care law, government attorneys told a federal appeals court Wednesday.

But in their brief filed with the 5th U.S. Circuit Court of Appeals, the U.S. Justice Department attorneys also indicated they want a court to resolve the constitutionality of the Affordable Care Act known as Obamacare. They said the appeal should not be dismissed as moot, even though the Trump administration opposes the law and has abandoned any defense of it.

The brief says the administration will keep enforcing the health care overhaul until a final court ruling on its constitutionality. Because the government is still enforcing it, they say a "live controversy" remains for the court to resolve.

The appeals court hears arguments in the case Tuesday. It's unclear when they will rule but any decision they make will likely wind up before the Supreme Court.

The main issue in the case is a December ruling by a Texas-based federal judge that the act was rendered unconstitutional in 2017 when Congress zeroed out the tax imposed on people who don't have insurance. That ruling was the result of a lawsuit filed by two individual "Obamacare" opponents and 18 Republican-dominated states.

Twenty mostly Democratic states and the U.S. House of Representatives appealed, wanting the 5th Circuit to overturn that ruling, which is on hold pending appeals.

Wednesday's filing came in response to a request for briefs last week from the three-judge panel that will hear arguments Tuesday. The questions dealt with whether the House and the 20-state coalition have legal "standing" to appeal, and what the "appropriate conclusion" of the case would be if they cannot.

"All in all, I think this submission by the United States makes it more difficult for the Fifth Circuit to dismiss the appeal as moot," said Matthew Brown, a health care lawyer in New Orleans and an adjunct professor of law at Tulane University.

The Justice Department brief also touched on the reach of Texas-based U.S. District Judge Reed O'Connor's ruling. In arguing that the states supporting the law don't have standing to appeal, the government lawyers appear to argue that O'Connor's judgment only applies to the states that filed suit against the law. The brief says the judgment "cannot be understood as extending beyond the plaintiff states to invalidate the ACA in the intervenor states."

'It's sometimes hard to know what the Trump Administration's arguing, but if we're reading this right, they seem to think the ACA is invalid in some states but not in others," said a statement issued from the office of California Attorney General Xavier Beccerra, who is leading the coalition of states defending the law. The statement also said, "We wouldn't be in this mess if the Administration were defending the law of the land like it is supposed to."