A federal appeals court has asked for supplemental briefing on whether a handful of states and the U.S. House of Representatives have standing to defend the Affordable Care Act (ACA).
In an order filed Wednesday, the court has asked the parties to address whether the state intervenors and the House have standing to defend the Obama-era health care law in the appeal, whether their interventions were timely, and whether there is a live case if the panel determines they don’t have standing.
The rare 11th-hour request — the case is scheduled for argument July 9 at the 5th U.S. Circuit Court of Appeals — could indicate that the panel may be looking at whether it could rule on the standing issues without addressing the underlying merits. The order told the parties to be prepared to address the questions during oral arguments.
U.S. District Judge Reed O’Connor of the Northern District of Texas ruled in December that a tax law passed in 2017 — which zeroed out the penalty imposed by the ACA’s individual mandate — rendered the entire health care law unconstitutional.
The law remains in effect while the ruling is being appealed to the 5th Circuit.
Under President Donald Trump, the Justice Department has stopped defending the law. A coalition of states, led by California Attorney General Xavier Becerra, has defended the law. The U.S. House of Representatives stepped in to defend the law. The House has hired former U.S. Solicitor General Don Verrilli, who defended the ACA at the U.S. Supreme Court nearly six years ago.
Texas Attorney General Ken Paxton and several other states are leading the challenge against the ACA.
Jonathan Adler, a professor at Case Western Reserve University School of Law, said the 5th Circuit’s questions on standing are significant.