Ever since Judge Reed O'Connor of the Northern District of
Texas ruled a year ago that the Affordable Care Act was unconstitutional, the country has been waiting for the next arbiter -- a federal appeals court -- to weigh in on the fate of the landmark health law.That ruling finally came Wednesday. But it offered little clarity.The judges from the 5th U.S. Circuit Court of Appeals ruled 2-1 that one key element of the law -- the mandate requiring people to have insurance -- was unconstitutional. But they sent the rest of the case back to O'Connor for what the dissenting judge called a "do-over," asking him to give it another think on the question of whether other parts of the law should be struck down too.The move means the legal showdown could continue for a long time, almost certainly beyond the 2020 election.We spoke with three law professors who have closely followed the battles over Obamacare to preview what next steps in this already prolonged litigation might look like.Can anything be done to speed up this process?The group of
Democratic states that are defending the act could ask for all judges on the 5th Circuit to take the case, known as an en banc hearing. Xavier Becerra, the attorney general of
California, said in a news conference Thursday that he wants to appeal directly to the
Supreme Court but is consulting other attorneys general in the group about that strategy."Both are long shots," said Jonathan H. Adler, who teaches at Case Western Reserve University School of Law. Since there are no immediate consequences to Wednesday's ruling -- the law continues to be enforced while the court process plays out -- the Supreme Court, in particular, would be unlikely to consider the case until it has made its way fully through the lower courts, Adler said.Not everyone shares that view, given the national importance of the law to the nation's health care system. "This is an unusual case, and the writing for the ACA is on the wall," said Nicholas Bagley, a professor at the University of Michigan School of Law. "So the court might opt to hear it now."When is O'Connor likely to rule again?The 5th Circuit put the burden on both sides to do their homework, to submit new briefs and reargue the case, a time-consuming process. And the federal government will be taking a new stance, since it now supports striking down the full ACA, a different position from its original one.Adding the time it will take for O'Connor to draft a fresh decision, his ruling might not emerge for nearly a year, several legal observers say. Then the appeal process would begin anew.Is this decision a legal punt?Adler considers the ruling a punt, saying, "it has no practical effect."Bagley, not so much: "The Supreme Court might well take the case, and this will remain a political headache for the Republicans."Abbe R. Gluck, a professor at Yale Law School, characterizes the 5th Circuit's ruling as more intentional. "As the dissent says, severability is a question of law -- the court doesn't need more briefing or facts to determine," Gluck said, referring to the doctrine that says when
Congress strikes down an element of a law but doesn't explicitly erase it all, the rest stands. "Instead, it sent the case back to a judge who has made his distaste for the entire ACA unclear," ducking responsibility for knocking it down or reinforcing it.Any clue what the appeals panel really thinks?"I think the panel is skeptical of the all-or-nothing approach to severability and isn't quite sure what to do," Adler said. "But that is somewhat speculative on my part."Bagley took a harder line, saying he thought the majority opinion almost completely endorsed O'Connor's ruling. The judge had said that when Congress in 2017 eliminated the tax penalty for those who didn't buy insurance, the full act became null."The court thinks, though, that there might be a few portions of the ACA that can be salvaged," Bagley said. "But it's signaling that it's OK if O'Connor thinks those are precious few indeed."Any bets on how the 5th Circuit will ultimately rule?Gluck said the panel noted that O'Connor gave short shrift to the views of the 2017 Congress, which struck down the penalty for not buying insurance but said nothing about eliminating the full health care law."Once the inquiry properly shifts to the 2017 Congress," she said, "it will be hard for any court to invalidate the whole law without looking like it is engaging in egregious judicial overreach."How long could this case continue?"The case is all but certain to drag out well past the 2020
election," Bagley said.Among the three law professors, on that point there was no dissent.This article originally appeared in The
New York Times.(C) 2019 The New York Times Company