Protesters rally March 23, 2016, in support of the Affordable Care Act's contraceptive mandate. Photo: Diego M. Radzinschi / NLJ

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.

The order filed Wednesday requests 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 in the U.S. Court of Appeals for the Fifth Circuit—could indicate the panel may be looking at whether they 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 congressional tax law passed in 2017—which zeroed out the penalty imposed by the ACA's individual mandate—rendered the entire health care law unconstitutional. Scholars have blasted the ruling as “embarrassingly bad” and “unmoored.”

The law, however, remains in effect while the ruling is being appealed to the Fifth Circuit.

A coalition of states, led by California Attorney General Xavier Becerra, have defended the law after the Justice Department made the controversial decision to drop its defense. The U.S. House of Representatives also stepped in to defend the law and 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 that challenge.

Jonathan Adler, a professor at Case Western Reserve University School of Law, said the Fifth Circuit's questions on standing are significant.

“It shows that the Fifth Circuit is taking the jurisdictional issues seriously,” Adler said. “I think it potentially threatens the House of Representatives standing. I think it is less of a threat to the intervenors, who definitely satisfy the traditional standards for (Article III) standing as much, if not more, than the plaintiff states.”

Nicholas Bagley, a law professor at the University of Michigan, said a ruling that neither the House nor the states have standing to appeal would preserve O'Connor's ruling and tee up a fight at the U.S. Supreme Court.

“More generally, this order suggests that the Fifth Circuit panel may be hostile to the ACA and inclined to support the red states,” Bagley tweeted. “The odds that the Fifth Circuit does something nasty to the health-reform law have gone up.”

Both Bagley and Adler have filed an amicus brief in the case critical of O'Connor's opinion as it relates to severability of the individual mandate. Their brief was filed by Morrison & Foerster.

The Justice Department, in a reversal from its previous stance, said in a March filing that it supported O'Connor's ruling that the entire act was unconstitutional, and that the individual mandate was not severable. Main Justice has a long tradition of defending the constitutionality of federal laws, and, while there are exceptions, it's rare for the department to refuse to defend federal statutes.

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