Pruitt In WSJ: ‘We are not children who must be protected by the federal government from making choices’
A State Reply to Justice Kennedy
By SCOTT PRUITT
The Supreme Court heard oral arguments Wednesday in King v. Burwell, a challenge to ObamaCare. At issue is wording in the 2010 Affordable Care Act stipulating that premium tax credits—i.e., federal subsidies—are available for people who enroll in ObamaCare “through an exchange established by the State.”
In the hours since oral arguments, much of the talk has centered around Justice Anthony Kennedy ’s suggestion that “from the standpoint of the dynamics of Federalism . . . there is something very powerful to the point that if [the challenger’s] argument is accepted, the States are being told either create your own Exchange, or we’ll send your insurance market into a death spiral.”
In other words, 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.
First, in the last ObamaCare case, NFIB v. Sebelius (2012), the Supreme Court said a statute is coercive only if it amounts to “a gun to the head” that “leaves the States with no real option but to acquiesce.” Here, we know that states had an option not to acquiesce in establishing health-care exchanges because they did not, as a matter of fact, acquiesce. Compare and contrast this with the Medicaid expansion at issue in NFIB v. Sebelius, where no state had refused the expansion, precisely because it was so coercive.