The U.S.Department of Justice argued in a July 3 letter brief the Houselacks standing because lawmakers haven't claimed any personalinjury (Photo: VGstockstudio/Shutterstock.com)

One question bound to come up during Tuesday's oralarguments in the legal challenge to Obamacare iswhether the U.S. House of Representatives and 16states can defend the law's constitutionality when thefederal government will not.

The parties' arguments about standing have been streaming intothe case because the U.S. Court of Appeals for the Fifth Circuitlate last month ordered supplemental briefing and asked lawyers toaddress at oral argument how new case law impacts the interventionsby the House and intervenor states. The Fifth Circuitalso asked whether there's still a live case orcontroversy to decide on appeal.

Related: DOJ goes all in on Obamacaretakedown

In letter briefs filed last week, all of the parties agree thatthere's still a case or controversy in the appeal since the federalgovernment has continued enforcing Obamacare as it appealed adistrict court's December 2018 ruling that the entire law isunconstitutional.

The appeal flipped in March when the U.S. Department of Justicetold the Fifth Circuit that it agreed that the act isunconstitutional. Yet the 16 intervenor states andWashington, D.C., which intervened in the lawsuit very early at thedistrict court level, are still defending Obamacare'sconstitutionality on appeal. More recently, the House intervened todefend the law.

Although they agree there's still a dispute for the FifthCircuit to resolve, the parties disagree about theintervenors' standing.

The U.S. Department of Justice argued in a July 3 letter briefthe House lacks standing because lawmakers haven't claimed anypersonal injury — rather, they have an institutional interest andwant to defend their legislation, the letter said.

The government also argued that the state intervenors haven'tmet their burden to prove standing because they haven't shown howthe district court's ruling injures them. This is because theruling only applies in the states that attacked Obamacare asplaintiffs in the case, and not in the intervenor states, said theletter.

While the plaintiff states, led by Texas, agreed that the Houselacks standing, they seemed puzzled by the federal government'sargument that the district court only invalidated Obamacare intheir state, not others.

The plaintiff states' July 5 letter by Texas SolicitorGeneral Kyle Hawkins said if the district court ruling stands, itwon't have geographic limits but will be unconstitutionalnationwide. Hawkins wrote that the states that intervened wouldface an injury as they've alleged they'll lose federal funding ifObamacare is invalidated.

The House also argued that an unconstitutional Obamacare rulingwould apply across the United States. However, it disputes thegovernment and plaintiff states' claim that it lacks standing. AJuly 5 letter brief by Donald Verrilli Jr. of Munger, Tolles &Olson in Washington, D.C.,  argued that case law gives theHouse the right to intervene and defend a law when the Departmentof Justice refuses to do so.

“That is precisely what the House is doing — defending the lawin its capacity as a representative of the federal government,”Verrilli wrote.

The intervenor states, lead by California, arguedthat they have standing because they face direct financialharm if Obamacare is held unconstitutional.

“Eliminating the act's Medicaid expansion provisions alone wouldcost the original 16 intervening state defendants and the Districtof Columbia more than $418 billion over the next decade,” said thestate intervenors' July 5 letter by Samuel P. Siegel of theCalifornia Department of Justice.

Mootness?

Given the federal government's position on appeal, the FifthCircuit also asked what should happen if the appeal is moot andnone of the parties have standing to appeal.

Although all of the parties have urged the Fifth Circuit to moveforward with the appeal, they disagree about what should happen ifthe court finds the appeal is moot.

The government and plaintiff states argued that thecourt should dismiss the appeal without vacating the districtcourt's ruling.

On the other side, the House and intervenor states urged thecourt to vacate the district court's ruling. TheHouse argued that vacating the ruling would serve thepublic interest because otherwise, a ruling that invalidated “oneof the most significant statutes in U.S. history” would never havea chance for appellate review.

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