Legislation by Litigation

By Connor Gallagher
Connor Gallagher is a sophomore at the University of Pennsylvania studying chemical and biomolecular engineering.

Texas is suing the federal government claiming that Obamacare is unconstitutional. Again. It’s becoming something of a tradition.

There have been two major lawsuits concerning Obamacare (somewhat more officially known as the ACA, for Affordable Care Act) that have reached the Supreme Court. The first, National Federation of Independent Businesses v. Sebelius, was decided in 2012, two years after the law’s passage. Despite the name, petitioners numbered in the dozens. In particular, merits briefs were submitted by the attorneys general of Texas, South Carolina, Alabama, Michigan, Washington, Nebraska, Utah, Louisiana, Colorado, Idaho, Pennsylvania, South Dakota, Indiana, Georgia, Ohio, Arizona, North Dakota, Alaska, Kansas, Maine, and Wisconsin, every single one of whom was a Republican at the time. [1]

Petitioners claimed that (1) the ACA’s individual mandate is unconstitutional, and (2) its Medicaid expansion provisions, which require states to expand Medicaid coverage to certain low-income individuals or risk losing all Medicaid funding, are unconstitutionally coercive. [2] Chief Justice John Roberts sided with the liberal members of the Supreme Court in upholding the individual mandate as constitutional under the Taxing and Spending Clause of the Constitution. [3] The Court additionally found that, while the Medicaid expansion provisions were unconstitutionally coercive, the Act could be rewritten so as to penalize states that did not comply by withholding incremental funding associated with expansion, rather than the entirety of Medicaid funding. [4]

The second and most recent holding was delivered in King v. Burwell in 2015. The petitioners in this case were limited to three Virginian residents who did not wish to purchase health insurance. Of course, the states did not allow their voices to go unheard. The Republican attorneys general of Oklahoma, Alabama, Georgia, Indiana, Nebraska, South Carolina, and West Virginia submitted multiple amici briefs in favor of petitioners. [5] A slew of other states––including Pennsylvania, which had since elected a new governor and attorney general, now Democrats––urged affirmance of the lower court’s decision in favor of the federal government. [6]

In King, petitioners seized on an apparent loophole in the ACA’s text, which they contended only made tax credits available to insurance applicants in states that had established Exchanges––basically health insurance markets––in accordance with the ACA. [7] The law provides that a federal Exchange shall be created for states that decline to establish their own Exchanges, but only explicitly grants the tax credits to persons on Exchanges “established by the State.” [8] If federal Exchanges could not extend tax credits to low-income insurance applicants, the law’s viability would be in serious jeopardy, at the mercy of a great many Republican governors.

Chief Justice Roberts doubled down on his 2012 surprise, snapping that “in petitioners’ view, Congress made the viability of the entire Affordable Care Act turn on the ultimate ancillary provision: a sub-sub-sub section of the Tax Code.” [9] The majority subsequently held that the tax credits were available on both the federal and the state Exchanges.

The passage of the Tax Cut and Jobs Act (the “GOP tax reform”) late last year has changed the Obamacare calculus even further. Besides making the first appreciable changes to the Tax Code in thirty years, the law additionally repeals the Obamacare tax penalty levied on a taxpayer when he or she fails to purchase health insurance. [10]

Recall that in Sebelius, Chief Justice Roberts and the majority upheld the individual mandate as constitutional because of the Taxing and Spending Clause of the Constitution. Now that the constitutional basis for the individual mandate is gone, Texas––and nineteen of its closest state friends––are suing the federal government claiming that the entire ACA is unconstitutional. [11]

That’s not the only action the federal courts will be seeing from state attorneys general, though. The Tax Cut and Jobs Act is apparently going to be challenged itself. New York Governor Andrew Cuomo has issued an official statement––on Twitter, of course––that New York, New Jersey, and Connecticut will all be suing the federal government, claiming that the Tax Cut and Jobs Act is unconstitutional. [12] Their issue is that the law caps the SALT deduction, in which taxpayers can deduct their state and local taxes (SALT) from their total taxable income, at $10,000. Cuomo and his partners contend that this provision is a deliberate and consequently unconstitutional attack on wealthier, liberal, Democratic-voting states.

What a mess.

Both Obamacare and tax reform are contentious pieces of legislation; they were both squeezed through Congress on partisan lines. Just because some law is contentious, though, does not make it “unconstitutional,” a word that has simply been abused now for about a decade. Lawmakers no longer debate the merits of policies, but instead decry their opponents’ proposals as violative of our country’s supreme law. And what’s worse, they enlist the services of state public servants––attorneys general––in reliably blue or red states to consume the time of federal courts by making untenable constitutional arguments about laws they do not particularly like.
           
And I am not kidding: their arguments are indeed laughable. No, the entirety of Obamacare is not unconstitutional because the tax penalty associated with the individual mandate has been repealed. Just because one provision of a law is declared unconstitutional does not mean the rest is unconstitutional. Take for instance Shelby County v. Holder (2013), which struck down Section 4(b) of the Voting Rights Act, but left the remainder of that landmark legislation intact. [13] And no, the SALT deduction cap is not unconstitutional. It may have been around for a century, but laws do not become permanent with age. [14]

Legislating is an art of persuasion. Changing policies accordingly requires convincing more people that your ideas are correct and channeling that sentiment into votes. It does not mean that we exploit the resources of sympathetic state governments to pretend that everything our opponents do is unconstitutional. Opposing Obamacare or tax reform is not wrong or un-American, but a federal court is the inappropriate forum for advancing changes to these laws.

I live and vote in Pennsylvania. On his website, Pennsylvania Attorney General Josh Shapiro lists the duties of his office. Only one involves the United States government, related to antitrust litigation. [15] I therefore make the daring conclusion that his job is not to sue the federal government on behalf of his national political party. The same goes for his 49 counterparts.


1. Merits Brief for State Petitioners on Severability, National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). http://sblog.s3.amazonaws.com/wp-content/uploads/2012/01/states-brief-on-sev.-1-6-12.pdf.
2. National Federation of Independent Business, et al. v. Sebelius, et al., 567 U.S. 519 (2012).
https://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf.
3. Ibid.
4. Ibid.
5. Brief of the States of Oklahoma, Alabama, Georgia, Indiana, Nebraska, South Carolina, and West Virginia and Consumers’ Research as Amici Curiae Supporting Petitioners. King v. Burwell, 576 U.S. __ (2015).
http://sblog.s3.amazonaws.com/wp-content/uploads/2014/09/Cert-Amicus-Brief-States.pdf.
6. Brief of the Commonwealths of Virginia, Kentucky, Massachusetts, and Pennsylvania, the States of California, Connecticut, Delaware, Hawaii, Illinois, et al., as Amici Curiae in Support of Affirmance. King v. Burwell, 576 U.S. __ (2015).
https://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/BriefsV5/14-114_amicus_affirm_va.authcheckdam.pdf.
7. King v. Burwell, 576 U.S. __ (2015). https://www.supremecourt.gov/opinions/14pdf/14-114_qol1.pdf.
8. Ibid.
9. Ibid., at 20.
10. Robert Pear, “Individual Mandate Now Gone, G.O.P. Targets One for Employers,” The New York Times, January 14, 2018. https://www.nytimes.com/2018/01/14/us/politics/employer-mandate.html.
11. Tom Howell, Jr., “20 States Sue to Kill Obamacare, Citing Trump’s Mandate Repeal,” The Washington Times, February 26, 2018. https://www.washingtontimes.com/news/2018/feb/26/obamacare-20-states-file-lawsuit-kill-health-care-/.
12. Renae Merie, “New York, New Jersey and Connecticut Plan Lawsuit Challenging the Constitutionality of Tax Law,” The Washington Post, January 26, 2018.
https://www.washingtonpost.com/news/business/wp/2018/01/26/new-york-new-jersey-and-connecticut-plan-lawsuit-challenging-constitutionality-of-tax-law/?utm_term=.502f06b56231.
13. Shelby County v. Holder, 570 U.S. 2 (2013). https://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf.
14. Jared Walczak, “The State and Local Tax Deduction: A Primer,” Tax Foundation, March 15, 2017.
https://taxfoundation.org/state-and-local-tax-deduction-primer/.
15. “Duties of the Attorney General,” Office of the Attorney General, Commonwealth of Pennsylvania.
https://www.attorneygeneral.gov/the-office/.
Photo Credit: Flickr user Ed Schipul

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