News Releases

    Supreme Court to Review Affordable Care Act’s Constitutionality


    March 2, 2020

    Rutledge says, ‘the individual mandate is unconstitutional’

    LITTLE ROCK - Arkansas Attorney General Leslie Rutledge issued a statement following today’s announcement by the U.S. Supreme Court that it would hear arguments on the Affordable Care Act’s unconstitutional individual mandate, likely during the Court’s 2020 term. Arkansas, in joining an 18-state lawsuit against the federal government, has successfully argued in the Fifth Circuit that the Affordable Care Act’s individual mandate is unconstitutional. A decision from the Supreme Court could settle the question whether all of Obamacare must be struck down because the individual mandate is unconstitutional.

    “I have long argued the individual mandate is unconstitutional, and it’s time the Supreme Court finally addresses it,” said Attorney General Rutledge. “Once the Affordable Care Act with its unconstitutional mandate are behind us, time will come for Congress to move forward and 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 under the U.S. Constitution. 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-penalty portion of the individual mandate as part of President Donald J. Trump’s tax overhaul. Then, in early 2018, Rutledge joined a multistate lawsuit filed in the federal district court in Texas. In this lawsuit, the states argued that Congress rendered all of Obamacare unconstitutional by doing away with the tax penalty. Another group of states, led by California, joined this lawsuit to defend the individual mandate.

    After losing in federal district court and on appeal to the Fifth Circuit, California and its allies petitioned the Supreme Court to review the Fifth Circuit’s decision that the individual mandate is unconstitutional. The coalition, that includes Arkansas, opposed California’s petition but also filed a separate petition asking the Supreme Court to also review the district court’s decision to invalidate Obamacare in its entirety. This morning the Supreme Court granted both petitions.

    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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