The Volokh Conspiracy

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Oklahoma's response to Justice Kennedy


In Thursday's Wall Street Journal, Oklahoma Attorney General Scott Pruitt addresses the federalism concerns raised by Justice Kennedy at oral argument in King v. Burwell. Here's a taste:

Justice Kennedy was asking, if Congress did in fact condition ObamaCare's tax credits on a state having set up an exchange, does that amount to an unconstitutional coercion of the states? In short: no. . . .

there is no legal precedent for a finding of coercion based solely on the fact that a federal program does not work well when the states decline to assist in its implementation. This sort of "well, Congress did such a bad job that states have no choice but to step in and bail Congress out by acquiescing" argument is, as U.S. Solicitor General Donald Verrilli put it Wednesday, "novel." That is precisely why the federal government never made this argument in any brief, and why Mr. Verrilli was quick to distance himself from it at oral argument. . . .

The states are not children that the federal government must paternalistically "protect" from the consequences of their choices by rewriting statutes. In our constitutional system, states are free to make decisions and bear the political consequences, good or bad, of those choices.

Declining to establish a state exchange allowed Oklahoma to voice its strong political opposition to the Affordable Care Act as a whole, as well as to make a statement that it wanted neither the large-employer mandate nor the individual mandate to have effect within its borders. That was the trade-off. Oklahoma declined the premium tax credits, but freed itself of those mandates, and that was a choice the state was happy to make.

Of note, AG Pruitt filed the first lawsuit in federal court challenging the legality of the IRS rule at issue in King v. Burwell. His office also filed an amicus brief in support of the plaintiffs in this case.

For more on the federalism issues raised by Justice Kennedy at oral argument, see this piece by Adam White, who was counsel of record for this amicus brief in support of the plaintiffs.