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    Rutledge Urges the Fifth Circuit to Affirm Decision that Obamacare Is Unconstitutional

    April 30, 2019

    LITTLE ROCK – Arkansas Attorney General Leslie Rutledge today announced Arkansas joined Texas and 16 other states in a brief urging the Fifth Circuit Court of Appeals to affirm the decision that the Affordable Care Act and its individual mandate are unconstitutional.

    “Today, Arkansas is one step closer to upending this unconstitutional law,” said Attorney General Rutledge. “The unconstitutional individual mandate was the backbone of this law and without it in place, Obamacare cannot be upheld. Congress must take action to increase health care options, lower costs and protect those with pre-existing conditions."

    In the brief filed today, the 18-state coalition argues that the district court was right to let them challenge the individual mandate because it increases the amount they spend on state health-insurance programs. The brief also defends the district court’s decision that all of Obamacare must be invalidated because the individual mandate is now unconstitutional against the arguments in an earlier Fifth Circuit brief by a separate, California-led coalition of states, which seeks to reverse the district court’s decision.

    In December, a U.S. district court in Texas agreed with the 18-state coalition after the group filed a lawsuit earlier last year challenging the constitutionality of Obamacare. They argued that Congress rendered all of Obamacare unconstitutional by doing away with the tax penalty in Obamacare’s individual mandate when it enacted President Donald J. Trump’s tax overhaul.

    In 2012, a majority of the Supreme Court upheld Obamacare against a constitutional challenge and held that 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 Commerce Clause of the U.S. Constitution. As Chief Justice John Roberts explained, and the four justice dissent agreed, the Commerce Clause gives Congress power to regulate commerce – but not to compel it, which is what the individual mandate does.

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