But in late June, the United States Court of Appeals for the Fifth Circuit asked for supplemental briefing from the parties on a third question: whether the Democratic states and House of Representatives even have standing to appeal Judge O’Connor’s ruling. To establish standing, a party has to show it has suffered a concrete injury that a ruling in its favor would redress.
The court also asked what the appropriate conclusion of the case should be if the intervening parties do not have standing and if the Justice Department, by no longer defending any part of the law, has “mooted the controversy.”
These recently raised questions will most likely be the first ones addressed during the arguments, which are before a three-judge panel in the appeals court in New Orleans: Carolyn Dineen King, appointed by President Jimmy Carter in 1979; Jennifer Walker Elrod, appointed by President George W. Bush in 2007; and Kurt Engelhardt, appointed by Mr. Trump in 2018.
If the appeals court ultimately decides that neither the House nor the intervening Democratic states have standing and that the case has become moot, it could either let Judge O’Connor’s ruling stand or vacate it. In any event, the losing party will almost certainly appeal to the Supreme Court.
“All of this is going to be playing out against the backdrop of the 2020 presidential election,” said Nicholas Bagley, a law professor at the University of Michigan. He was among a bipartisan group of professors who argued in an amicus brief last year that the rest of the law should survive even if its mandate to buy insurance was found unconstitutional, and who have criticized the plaintiffs’ case as weak.
Democrats are already running ads against Mr. Trump and other Republicans over the case, including five state attorneys general who signed on as plaintiffs and will be up for re-election next fall. Protect Our Care, an advocacy group that supports the law, will start running digital ads this week against Republican senators considered vulnerable next year: Thom Tillis of North Carolina, Joni Ernst of Iowa, Cory Gardner of Colorado and Martha McSally of Arizona.
“President Trump’s Texas lawsuit will overturn America’s health care laws,” said Leslie Dach, the chairman of Protect Our Care, “and every Republican lawmaker who refused to condemn it is complicit in the destruction of their constituents’ health care.”