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Does the Obamacare Case Represent a New Norm for States?

Historically, attorneys general rarely weigh in on health policy or go up against each other in the courtroom over it. Then came the Affordable Care Act.

California Attorney General Xavier Becerra talking at a podium with doctors behind him.
California Attorney General Xavier Becerra: The recent ACA ruling "threatens the entire health-care system. ... You name it, it hurts it."
(AP/Richard Vogel)
On the same day that the rule took effect, a federal judge temporarily blocked a Trump administration policy that limits an Obama-era requirement for employers to cover some form of birth control. The rule was challenged by a group of Democratic attorneys general from 13 states.

Historically, state AGs rarely weigh in on federal health policy, and they even more rarely go up against one another in the courtroom over the issue. But it’s a phenomenon that legal experts say is becoming the norm as partisanship and gridlock grow.

"Health policy tends to be more polarizing in the national landscape, and states play a large role in health care," says Paul Nolette, a Marquette University political scientist and author of a book on AGs and their evolving role called Federalism on Trial. "Since state actors have more control, there are more opportunities to clash with the federal government" -- or in some cases, with each other.

The most consequential example of this is the case currently in court that could overturn the Affordable Care Act (ACA), President Obama's signature health reform law. 

Republican AGs from 20 states sued to overturn the law. President Trump has said that he wants to repeal the law, so in an unusual but unsurprising move, the Trump administration refused to defend the ACA in court. Democratic state AGs then stepped in, essentially taking the federal government's legal place in this case.

Tim Jost, a health law expert and professor emeritus at Washington and Lee University, says the bickering over health policy among state attorneys general began with National Federation of Independent Businesses (NFIB) v. Sebelius, the 2012 case decided by the U.S. Supreme Court that largely upheld the Affordable Care Act. It was the first time in his memory that state AGs were on opposite sides of the courtroom on the issue of health. Twenty-six Republican AGs joined NFIB in outright challenging the law, and a coalition of Democratic AGs filed amicus briefs in support of the Obama administration.

State attorneys general first realized they had a significant amount of power to shape health policy back in the 1990s, says Nolette. They were the master negotiators of the massive tobacco settlement in 1998 after Congress failed to adopt the settlement. In that case, Democrats and Republicans teamed up against the tobacco companies, which agreed to dole out $200 billion to states over 25 years -- money that states are still benefiting from. It’s the largest settlement in U.S. history. Furthermore, it imposed strict federal guidelines on the marketing and advertising of tobacco, forbidding ads targeted to youth and most forms of outdoor advertising. 

Hoping to replicate their success against the tobacco industry, the vast majority of state AGs on both sides of the aisle have signed onto some form of litigation against opioid manufacturers. Nolette says he’s heard that a similar settlement could come as soon as the end of this year.

For the most part, AGs aim to work on a bipartisan basis, says Lizzie Ulmer, a spokesperson for the Democratic Attorney General Association. But Adam Piper, executive director of the Republican Attorney General Association, recognizes that things have changed in some respect. He says some Democractic AGs are like "a third U.S. senator, an activist with a set agenda."

As long as health care is one of the more contentious issues in American politics, experts expect state AGs to keep attempting to shape health policy in their favor. In the current political climate, Jost says Democratic AGs  "see themselves as defending the country from a hostile force."

This appears in the Health newsletter. Subscribe for free.

Mattie covers all things health for Governing.

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