A State Is a ‘They,’ Not an ‘It’: Intrastate Conflicts in Multistate Challenges to the Affordable Care Act

40 Pages Posted: 13 Dec 2019 Last revised: 1 Oct 2020

See all articles by Anthony Johnstone

Anthony Johnstone

University of Montana School of Law

Date Written: October 5, 2019


This article examines the pluralism of state constitutional politics through the lens of the states’ responses to the Affordable Care Act (ACA, or “the Act”) over the past decade. Although the Act was conceived as a model of cooperative federalism, its broad policy scope and deep impacts on states and their citizens invited state partisan mobilization for and against the law even before Congress enacted it. The Act depends on executive and legislative branches of state governments to implement two of its key elements, health insurance exchanges and Medicaid expansion respectively. The need for state implementation provided multiple points for federal-state policy coordination, and, in many states, federal-state political contestation. These policy and political disputes immediately spilled into court. There state officials, led by attorneys general, reframed the Act’s policies as presenting a series of constitutional questions that would reshape the Act itself.

The bright partisan lines of red-state attacks on the Act, and blue-state defenses of it, obscure a more complicated political reality on the ground in the states. More than half of the states rendered a mixed verdict on the Act, supporting some of its elements and opposing others. In the courts alone, several attorneys general switched positions—or voters switched attorneys general—at some point during the Act’s legal saga. In several states, officials other than the attorney general joined the courtroom scrum, sometimes lining up directly opposite the state’s chief legal officer in attempts to give voice to other state interests. These intrastate conflicts challenge simple models of partisan federalism and raise difficult questions of federalism and state power in an emerging regime of state public law litigation.

This article proceeds in three parts. First, it introduces the office of state attorney general and the role of attorneys general in national policymaking through litigation. State attorneys general increasingly engage in ideologically charged multistate litigation with the federal government and reinforce national party lines when doing so. Second, the article sketches out this new regime, taking as its model several landmark challenges that mobilized a wide majority of state attorneys general in opposition to, or support of, the Affordable Care Act over the past decade. This new regime includes other state actors too: state legislatures that enacted Medicaid expansion under the Act, state governors who established health insurance exchanges under the Act, and some actors from both groups appearing in litigation, as parties or amici, aligned with or opposed to their state’s position taken by its attorney general. Third, the article suggests some doctrinal implications of this new regime for separation of powers under state constitutions and federalism doctrine under the United States Constitution, as well as procedural implications for the handling of these cases by the Supreme Court and other federal courts.

Suggested Citation

Johnstone, Anthony, A State Is a ‘They,’ Not an ‘It’: Intrastate Conflicts in Multistate Challenges to the Affordable Care Act (October 5, 2019). 2019 BYU L. Rev. 1471 (2020), Available at SSRN: https://ssrn.com/abstract=3493907

Anthony Johnstone (Contact Author)

University of Montana School of Law ( email )

Missoula, MT 59812-0002
United States

HOME PAGE: http://www.umt.edu/LAW/

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