Photo: Diego M. Radzinschi

A coalition of attorneys general from 18 states wants the U.S. Supreme Court to skip an Obamacare appeal, arguing it's not ripe for review.

The states argued in a brief in opposition that the appeal by a coalition of Democratic states and the U.S. House is too early because a Texas district court hasn't had a chance to rule whether the entire Affordable Care Act is unconstitutional.

"Where, as here, a court of appeals resolves the merits of an appeal but not the remedy, and remands to the district court to enter an appropriate remedial order, this court's practice is to deny review," the motion said. "This court should not allow petitioners to leapfrog lower-court consideration."

The 52-page brief in opposition filed by Texas Solicitor General Kyle D. Hawkins, was filed on his state, Florida, Georgia and several others.

The appeal challenges a decision by the U.S. Court of Appeals for the Fifth Circuit, which found the individual mandate to purchase health insurance — which the Supreme Court upheld in 2012 as a constitutional tax — was no longer constitutional because Congress zeroed out the tax penalty for not having insurance in 2017.

The Fifth Circuit panel decision largely affirmed a 2018 ruling by U.S. District Judge Reed O'Connor of the Northern District of Texas but remanded the case to decide whether Congress intended other provisions of the law to remain operable.

Although the Democratic states and U.S. House asked the Supreme Court to expedite the appeal, the justices declined to do that, which rules out a ruling before the November presidential election. The stance of the Trump administration and a coalition of Republican states is that the whole law is unconstitutional.

The opposition brief said the Fifth Circuit was correct to hold the Republican state plaintiffs and two individuals suffered harm from ACA's individual mandate, which would give them standing to sue over the act. Texas also argued the Fifth Circuit correctly held the individual mandate, with no tax penalty, was unconstitutional.

On the other hand, the coalition argued the Fifth Circuit should have been the one to decide whether the unconstitutional individual mandate could be severed from the rest of Obamacare. But it was "hardly indefensible" that the Fifth Circuit would remand the case to the district court to go line-by-line, answer that severance question and find a remedy.

"The Fifth Circuit has ordered this case to return to district court to determine which, if any, provisions of Obamacare are still valid notwithstanding the unconstitutional mandate. That is where this case belongs at this time," Texas Attorney General Ken Paxton said in a statement. "I applaud the Fifth Circuit for upholding the core principle that the federal government cannot order private citizens to purchase subpar insurance that they don't want. I look forward to demonstrating exactly how this law has failed in district court."

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