The judges gave the parties two more days to respond to follow-up questions about standing, but they shot down a request to postpone the highly anticipated hearing.
The panel of three appellate judges set to hear oral arguments next week on the constitutionality of the Affordable Care Act rejected a request Tuesday to delay the hearing.
The judges had asked the parties last week to file supplemental briefs by this Wednesday on whether the California-led coalition of states and the U.S. House of Representatives have legal standing to intervene in the appeal, as they did. Some proponents of the ACA took the Fifth Circuit judges' request as a possible bad omen for the future of the Obama-era law, though others were less certain.
In response, the Texas-led coalition of states that sued to invalidate the entire ACA asked Monday for more time to answer the judges' questions. They asked that the supplemental briefing deadline be bumped back 20 days and that oral arguments be postponed until after those briefs have been filed.
"These important and potentially dispositive questions merit a thorough response that represents the cohesive views of all Plaintiff-Appellee States and their respective Attorneys General," Texas Solicitor General Kyle D. Hawkins wrote Monday. "As of today, it appears unlikely that any such response will be completed by the Court's July 3 deadline."
The request was opposed by the House and the California-led coalition of states.
"Allowing this appeal to proceed on its current schedule will provide some measure of certainty about the ACA's future to States, the healthcare system (including providers and insurers), and ordinary Americans, and allow them to structure their affairs accordingly," attorneys for the intervening defendants wrote Monday.
The judges granted a two-day extension to the briefing deadline, which is now Friday, July 5, at 5 p.m. Central Time. But they rejected the request to delay oral arguments, which are still scheduled for Tuesday, July 9, when the three-judge panel will review a lower court ruling that invalidated the ACA in its entirety.
What makes the supplemental briefing request so interesting is how it puts the spotlight back on the Trump administration's shift in legal argument. At the District Court level, the U.S. Department of Justice had argued that only three portions of the law—the ACA's individual mandate, the community-rating provisions, and guaranteed-issue provisions—were rendered invalid when Congress zeroed out the tax penalty tied to the individual mandate. At the Fifth Circuit level, however, the DOJ shifted gears and began to argue that every single provision of the law is inseparable from the individual mandate and, therefore, invalid.
If the House and the California-led coalition don't have standing to intervene in the appeal, then there might not be any active dispute between the plaintiffs and defendants, since the Texas-led coalition and the DOJ agree the entire ACA should be invalidated. That's why the Fifth Circuit judges asked the parties for input on whether there's still "a live case or controversy between the plaintiffs and the federal defendants."
In other words, the appellate judges have signaled that oral arguments will cover not only the dispute over which provisions of the ACA, if any, can stand but also whether the entire conflict was mooted by the DOJ's shift.
Steven Porter is an associate content manager and Strategy editor for HealthLeaders, a Simplify Compliance brand.
The Texas-led states that oppose the ACA had asked for more time to respond to questions from the Fifth Circuit.
The judges gave the parties a short extension but declined to postpone next week's hearing.
A big question lingers over the entire proceeding: Did the DOJ render this whole dispute moot?