The Ninth Circuit heard oral argument yesterday in Pasadena in Baldwin v. Sebelius. The panel was comprised of Circuit Judges Fernandez, Rymer, and Tallman. (Judge Rymer participated remotely.) In general, the argument seemed to go pretty poorly for the plaintiffs (and reasonably well for the government).
Much of the argument focused on a matter specific to this particular case--namely, that the district court found that it lacked subject matter jurisdiction but nonetheless proceeded to deny the plaintiffs' request for a preliminary injunction. In their questioning, the judges seemed to suggest (rather strongly) that, once the district court concluded that it lacked jurisdiction, it had no authority to deny the injunction. As Judge Tallman commented, "If the court has no power to do anything in a case, there is nothing left once the court dismisses the case for lack of subject matter jurisdiction." As such (if I was following this correctly), the Ninth Circuit may well lack jurisdiction even to review the district court's supposed denial of a preliminary injunction. Perhaps, though, the court could construe the plaintiffs' appeal as an appeal of the district court's dismissal, and set the entire injunction matter to the side.
The United States (represented by Beth Brinkmann of the DOJ's Civil Division) argued that the Ninth Circuit had jurisdiction to affirm the denial of the injunction on the ground that the plaintiffs had not made sufficient factual allegations to demonstrate Article III standing. (Interestingly, the plaintiffs, despite being granted leave to amend their complaint last year by the district court, failed to add to their allegations to augment their claims to an injury in fact. They took the position yesterday that any such additional factual allegations were unnecessary and beside the point.)
Whatever the Ninth Circuit holds in this case, it seems clear that its ruling will be limited to one or more of the various jurisdictional questions. No judge asked a single question going to the constitutionality of the ACA itself.
You can access an audio file of the argument here.