UPDATE: July 2, 2019: Republican states filed a letter with the Fifth Circuit Court of Appeals requesting a 20-day delay in the case challenging the Affordable Care Act. They told the court delaying oral argument until July 23 would give the states time to brief "several significant questions about the standing of the intervenors, the existence of a live case or controversy, and the 'appropriate conclusion' to this appeal in the event the Court lacks appellate jurisdiction." Meanwhile, California Attorney General Xavier Becerra, the leader of the coalition of Democratic attorneys general intervening in the case, opposed the request. Keeping the case on its current schedule — with oral argument set to take place July 9 — "will provide some measure of certainty about the ACA’s future to States, the healthcare system (including providers and insurers), and ordinary Americans, and allow them to structure their affairs accordingly," Becerra said in a letter.
UPDATE: June 27, 2019: A spokesperson for California Attorney General Xavier Becerra, the leader of the coalition of Democratic attorney generals intervening in the case, told Healthcare Dive "there shouldn't be a question about our state's standing and the harm that the lawsuit could pose to nearly every American."
- The U.S. Court of Appeals for the Fifth Circuit has asked for a briefing in the case challenging the constitutionality of the Affordable Care Act, throwing a potential wild card into the highly watched case.
- The appellate court is asking whether the Democratic attorneys general and the U.S. House of Representatives, both of which intervened to defend the law, have legal standing to do so. The appeals court also asked what it should do in the event the case becomes moot.
- The future of the lawsuit and the ACA itself are unclear at this juncture, but oral argument in the case, which is set for July 9, could bring some clarity. If the ACA is invalidated entirely, health insurers, hospitals and patients will feel the effects as some 20 million people are expected to lose their coverage and certain required coverages will end.
More than 20 Democratic state attorneys, led by California Attorney General Xavier Becerra, intervened in the case to argue a trial court's decision invalidating the entire ACA is erroneous and "wrong-headed." Later, the Democratic-led House of Representatives allowed its legal counsel to intervene in the case and join the appellants.
It's not unusual for an appeals court to ask for supplemental briefing in a case, especially when, as in this case, new legal precedent has been issued from the U.S. Supreme Court on the standing issue.
But "the questions are pretty pointed," Katie Keith, a health policy expert at Georgetown University, told Healthcare Dive. One of the questions the panel is asking, she said, is "Is there even a case here?"
And, if the intervening states and the House "don't have standing, there's nothing to fight about and no disagreement, then the case is moot," Keith said.
If the intervenors who are defending the ACA are found not to have standing to participate in the suit, there's no longer a live controversy.
The posture of the case is all the more unusual because Texas, which is the named plaintiff challenging the ACA, sued the federal government over the law but the federal government is no longer defending the ACA.
That change occurred when the Trump administration in March said it agrees the law is unconstitutional.
If the standing issue is decided adversely to them, the intervening states and the House are all but certain to appeal the issue to the Supreme Court.
The Fifth Circuit could rule on the appeal this fall. If it finds the case moot but leaves intact the December 2018 ruling by trial judge Reed O'Connor of the U.S. District Court for the Northern District of Texas invalidating the entire law, "that would set off a litigation bonanza," Keith said.
But Keith said the appeals court probably will wind up deciding the case on the merits and find the intervenors have standing. "This is an important enough case and the lower court's decision is so extreme, this one should be decided on the merits."