“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, wrote on Twitter. “The odds that the Fifth Circuit does something nasty to the health-reform law have gone up.”
Others said the court might simply be ensuring that the House and Democratic states’ standing is valid and would be upheld by the Supreme Court in the likely event of an appeal.
“There are perfectly normal, understandable reasons why courts would ask these sorts of questions,” said Jonathan Adler, a law professor at Case Western Reserve University School of Law and a frequent critic of the ACA. But, he added, “the order does add a little bit of uncertainty in this litigation.”
The Trump administration and 18 Republican-led states are defending a lower-court decision in December that ruled all of Obamacare was unconstitutional after Congress, in its 2017 task overhaul, zeroed out the penalty for what is known as the law’s individual mandate, which required that most Americans purchase health insurance or pay a fine. The Supreme Court has twice upheld the law, in 2012 and 2015.
If the 5th Circuit upholds the lower-court ruling — which would almost certainly put it back in front of the Supreme Court — it would create a political and logistical mess for the Trump administration and Congress. Republicans repeatedly failed to repeal and replace Obamacare while they controlled both the House and the Senate in 2017 and have little appetite to revisit health reform.
“If a court decision came down quickly overturning the ACA, it would immediately catapult health care into the primary issue in the election,” said Larry Levitt, a senior vice president with the Kaiser Family Foundation, a nonpartisan health policy organization. “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.”
Eleven of the 16 active judges on the 5th Circuit are Republican appointees, including five named to the bench by President Trump. The court has not yet announced which three judges will hear the ACA case.
The law extended health insurance to some 20 million Americans by creating markets in which people without employer coverage could purchase coverage and through an expansion of Medicaid. It also prohibits insurers from discriminating against those with preexisting medical conditions and allows children to remain on their parents’ health plans until they are 26 years old, two of the law’s most popular provisions, which Trump has said he would like to keep.
Democrats credit their recapture of the House majority in the 2018 midterms to their defense of the ACA, particularly its popular consumer protections, and they joined the appeal defending Obamacare shortly after the new Congress convened.