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A new question in the Texas ACA case

The 5th Circuit Court of Appeals added a new question on Wednesday to the high-stakes lawsuit over the Affordable Care Act's survival: Whether Democratic attorneys general or the House of Representatives have the legal standing to defend the ACA in court.

What it means: The court is asking whether it ought to kick out the entire pro-ACA side of the case. Technically Texas (with a group of other red states) is suing the Trump administration, but the Trump administration says it agrees with Texas' position. Blue states and House Democrats stepped in so that somebody would be arguing the pro-ACA position.

The intrigue: If the 5th Circuit does boot Democrats off of this lawsuit, that would likely mean no one can appeal a lower court’s ruling striking down the entire law.

  • As University of Michigan law professor Nicholas Bagley explained on Twitter, it's not necessarily clear how all that would play out.
  • Presumably, the Supreme Court would be disinclined to let a single district court judge have the final say on whether the Affordable Care Act lives or dies. So there would probably be fresh procedural wrangling to revive some kind of appeal.

The bottom line: This could be a bad development for the ACA — or it could end up not mattering much at all, if the court decides Democrats do have standing. But it's definitely not a positive development for the health care law.

What’s next: The 5th Circuit will hear oral arguments July 9.

Go deeper: Suddenly everyone is defending the Affordable Care Act