News Releases

    Affordable Care Act’s Individual Mandate Found Unconstitutional


    December 20, 2019

    Says, ‘It is important that the rule of law prevail.’

    LITTLE ROCK - Arkansas Attorney General Leslie Rutledge issued a statement following Wednesday’s decision by the U.S. Court of Appeals for the Fifth Circuit agreeing with Arkansas’s arguments, made as part of an 18-state coalition, that the Affordable Care Act’s individual mandate is unconstitutional. The coalition’s lawsuit will continue to settle the question whether all of Obamacare must be struck down because the individual mandate is unconstitutional.

    “The individual mandate is unconstitutional, and it is important that the rule of law prevail,” said Attorney General Rutledge. “As the Supreme Court noted, the individual mandate was propped up by a tax that Congress rightfully removed in 2017, making the mandate unconstitutional. Now is the time for Congress to create a comprehensive healthcare law that will work with states and provide coverage for those with pre-existing conditions.”

    In 2012, a majority of the Supreme Court upheld Obamacare against a constitutional challenge because it said the individual mandate was a valid exercise of Congress’s Tax Power. But a different majority also held that Congress did not have the power to create the individual mandate under the Constitution’s Commerce Clause. As Chief Justice Roberts explained, and the four-justice dissent agreed, the Commerce Clause gives Congress the power to regulate commerce – but not to compel it, which is what the individual mandate does.

    In 2017, Congress eliminated the tax portion of the individual mandate as part of President Donald J. Trump’s tax overhaul. Rutledge then joined a multistate lawsuit filed in U.S. District Court in Texas, arguing that Congress rendered all of Obamacare unconstitutional by doing away with the tax penalty.

    Judge Reed O’Connor of the Texas federal court agreed and ruled that the individual mandate was no longer valid under Congress’s Tax Power. Applying the Supreme Court’s 2012 holding that the individual mandate violated the Commerce Clause, Judge O’Connor struck it down as unconstitutional. He then ruled that Congress would not have passed Obamacare without the individual mandate because it was an essential part of the law. Therefore, he also invalidated the entire law.

    Wednesday the Fifth Circuit affirmed Judge O’Connor’s ruling that the individual mandate is unconstitutional. But the Fifth Circuit sent the case back to Judge O’Connor for him to provide additional support for his other ruling, that Congress would not have passed Obamacare without the individual mandate.

    In addition to Arkansas, the coalition – led by Texas – includes the attorneys general of Alabama, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Utah and West Virginia, along with the governor of Mississippi.

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