Judges on the U.S. Court of Appeals for the 5th Circuit have made a troubling request for more information in the case challenging the constitutionality of the Affordable Care Act. They are questioning the right of Democratic states and the U.S. House of Representatives to appeal a lower-court decision throwing out the law.
The states and House stepped in when the Trump administration, in a stunning reversal of precedent, refused to defend existing law and instead joined with conservative states in trying to overthrow it. Legal experts are concerned about what this portends on the heavily Republican court, for years the court that has attacked progressive policies. "More generally, this order suggests that the Fifth Circuit panel may be hostile to the ACA and inclined to support the red states," Nicholas Bagley, a University of Michigan law professor, tweeted. "The odds that the Fifth Circuit does something nasty to the health-reform law have gone up." Jonathan Adler, a long-standing critic of the ACA and law professor at Case Western Reserve University School of Law conceded that "the order does add a little bit of uncertainty in this litigation" but that the questions are "perfectly normal, understandable."
We don't know yet the composition of the three-judge panel that's hearing the arguments on July 9, but chances are pretty good there's going to be a Trumper on it. Out of 16 active judges on the court, 11 are Republican appointees and 5 are Trumpers. It is a highly politicized court, which means it could break either way. Overthrowing the law in a presidential election year would be extremely dicey, given how prominent health care has proven to be as an election issue, one that decidedly breaks against Republican. On the other hand, nothing has galvanized the extremist base more than destroying President Obama's most significant achievement.
An adverse decision for the law would upend everything—the election, the healthcare system as a whole because in the nearly ten years since it has passed it has become woven into almost every facet of care. Larry Levitt, a senior vice president with the Kaiser Family Foundation, stresses just how monumental the discussion is. "The issue is now almost 10 years old and has so many legal tentacles that it would take a long time and probably many additional lawsuits to figure out how to unwind it."
On the surface, the question of standing seems to be a no-brainer—the states defending the law have just as much at stake as the opposing states that brought the case, more in fact since they all expanded Medicaid and have much larger populations which would suddenly be forced into uncertainty. But the Congress that actually wrote the law should certainly have the right to defend the law in court. That the court is now questioning that very premise at this point doesn't bode well for the law.