A full nine years after its enactment, the future of the Affordable Care Act remains uncertain as courts continue to grapple over its constitutionality. Earlier this month, a three-judge panel of the Fifth Circuit Court of Appeals heard arguments over whether the fact that Congress eliminated the ACA’s penalty for not signing up for health care rendered the entire law invalid.

The argument pitted 18 Republican state attorneys general and the Trump Administration against 20 state attorneys general and the U.S. House. Of the 20, 18 are Democrats, and two are Republicans – the Republican attorneys general of Montana and Ohio crossed over to join the Democrats after warning that millions of people in their two states combined would lose coverage if the ACA is overturned.

A ruling from the Fifth Circuit is expected in early fall; based on arguments before the court, it is impossible to conclude how the court will rule. However, whichever side loses is expected to appeal to the U.S. Supreme Court, which – if the high court accepts the case – presumably would add it to its 2020 term, setting the stage for a decision in the middle of an election year. This would be the third time that the Supreme Court has taken up the ACA’s constitutionality.

During arguments before the Fifth Circuit, two of the panel’s three judges – both appointed by Republican presidents – aggressively questioned defenders of the ACA whether the ACA’s individual mandate is constitutional and whether the entire law could stand without it.

Appellate Judge Jennifer Elrod, a George W. Bush appointee, posited that members of Congress – who failed to agree on an ACA replacement plan two years ago – deliberately eliminated the mandate penalty because they knew the rest of the law would have to fall. She said perhaps lawmakers thought, “Aha, this is the silver bullet that’s going to undo Obamacare.”

But attorneys for the states defending the ACA pushed back. They said that Congress clearly intended for the rest of the law to survive when it eliminated the mandate penalty. “All the court has to do is look at the text,” said Samuel Siegel, the attorney representing the mostly Democratic-led states.

You can read more about the intricacies of the case before the Fifth Circuit here.

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