- Ahead of oral argument on Tuesday in the case challenging the constitutionality of the Affordable Care Act, parties filed supplemental briefs requested by the appeals court. They all argued a "live case or controversy" warrants U.S. Court of Appeals for the Fifth Circuit review of the case.
- If the appeals court finds it doesn't have jurisdiction to hear the case, it will then have to decide whether to leave the trial court's decision, which invalidated the entire ACA, intact, or to vacate it.
- The appeals court will also hear argument on whether the Democratic attorneys general and the U.S. House of Representatives have standing to intervene in the case.
If the ACA is invalidated entirely, health insurers, hospitals and patients will see major disruption as some 20 million people are expected to lose their coverage and certain required coverages will end.
Texas, joined by 17 other states, sued the federal government over the ACA in 2018. Trial judge Reed O'Connor of the U.S. District Court for the Northern District of Texas invalidated the entire law late last year.
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.
In its supplemental brief, the Department of Justice argues there is still a live dispute — even though it's now no longer defending the ACA — because a dispute existed when it filed the initial appeal of O'Connor's decision in January.
And while the DOJ says it now largely agrees with the trial court's decision, it tells the Fifth Circuit the trial court's decision was "overbroad" and shouldn't be affirmed without qualification.
Some of the ACA could remain undisturbed, such as some healthcare fraud and anti-kickback provisions, it said in its brief.
However, the Justice Department says neither the intervenor states nor the House of Representatives has standing to participate in the suit. The Democratic states haven't shown they'd be injured by the trial court's decision because the decision only applies to the plaintiff states, not the intervenors, the DOJ argued.
But the Republican states disagree with the Justice Department's position on standing, arguing both the plaintiff and intervenor states do have standing. Nevertheless, the Republican states say the Democratic-led House of Representatives doesn't have standing because, among other things, the House can't take the place of the Attorney General and because its intervention was untimely.
The plaintiff states urged the appeals court to leave the trial court decision intact if it finds there's no live case for it to decide, but to send the ruling back to the trial court for clarification if it needs it.
As for the more than 20 Democratic state attorneys, led by California Attorney General Xavier Becerra, they argued they have standing to intervene because they would suffer concrete harm from the invalidation of the ACA, losing billions of dollars in federal monies. And, if the appeals court finds it can't hear the case in the first place, they urge the court to vacate the trial court's decision.
The House of Representative's brief echoes many of the arguments made by the Democratic AGs but also notes if the House isn't allowed to intervene, the defense of the ACA "will be left to the DOJ, despite its decision not to defend the law."
The Fifth Circuit could rule on the appeal this fall, but the case is likely to ultimately end up in front of the U.S. Supreme Court.
Editor's note: The headline of this story previously referred to House Republicans.