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Undeterred by Failure, GOP States Still Fighting Obamacare

States are spending millions fighting the law that courts uphold almost every time.

Texas Gov. Greg Abbott sued the Obama administration 25 times as attorney general.
(AP/David J. Phillip)
Last month, six states filed a new lawsuit against the Obama administration over the Affordable Care Act (ACA).

The case, filed in the Northern District of Texas, takes issue with the Health Insurance Providers Fee, which helps fund insurance subsidies. Attorneys general in Indiana, Kansas, Louisiana, Nebraska, Texas and Wisconsin say the fee has cost them tens of millions of dollars and claim there's no mention of it in the ACA. States are reimbursed for the fee but only about 54 cents to the dollar. 

Meanwhile, states have spent tens of millions of dollars challenging Obama’s health-care law since its passage in 2010. To date, 28 states -- all under Republican leadership -- have filed a joint or individual lawsuit against the landmark legislation. But these lawsuits, by and large, haven’t been successful. So why are states still spending time and money trying to fight a law that courts uphold almost every time?

There have been a total of six settled cases that states have filed against the law, all in an attempt to ultimately repeal it. The cases were either dismissed or justices ruled largely in favor of the federal government. 

Republican-led states did, however, get one big win when the U.S. Supreme Court ruled in 2012 that states can decide whether or not to expand Medicaid. Since then, state AG’s have changed their legal strategy.

“The cases we’ve seen most recently are not regarding central parts of the law. We will likely continue to see suits against the ACA that chip away at it instead of just trying to get rid of it,” said Mark Regan, legal director at the Disability Law Center of Alaska. 

There are currently four pending lawsuits brought by states. They're about wonkier aspects of the law, including tax credits, tax collection and fees.

Even when these cases aren’t successful, which is nearly every time, state AGs often use them as a way to boost their political profile among conservative voters.

“Sometimes it’s useful and necessary to sue the federal government. And sometimes tax dollars are being used to fund political campaigns,” said David Orentlicher, a law professor at Indiana University’s Hall Center for Law and Health and a former Democratic state legislator.

Greg Abbott, who brags that he sued the Obama administration 25 times as attorney general, easily won his election to become the governor of Texas. "I go into the office, I sue the federal government, and I go home," he said. Greg Zoeller, Indiana's attorney general who has filed several lawsuits against the ACA, is running for Congress this year.

But it doesn't always work in their favor.

Virginia's Ken Cuccinelli, for example, was one of the first AGs to challenge the law in court. A few years later, he only had a failed gubernatorial bid to show for it. 

In the past 20 years, state AGs have started to band together to both challenge and support the federal government. This started at the tail end of the Clinton administration, when the Republican and Democratic Attorney Generals Associations were formed. This is also when state politics started to become more polarized, according to Paul Nolette, a political science professor at Marquette University.

“Attorney generals have always had the gift of being pretty autonomous. Now we are seeing them use their power to push back on federal policies in a way we really haven’t seen before,” said Nolette.

Health care isn’t the only catalyst for mass lawsuits from state AGs. More than half the states teamed up to file suit against Obama's rule to cut emissions from coal power plants -- even before the rule was finalized. And at least two dozen states also filed suit in 2015 challenging Obama’s immigration order to offer work permits to more than 4 million people living in America illegally. Both cases have reached the U.S. Supreme Court.

All of these lawsuits come at a price to the public. 

“If a case ends up in the Supreme Court, you’re looking at a state spending six figures on a case," said Orentlicher.

But the AGs fighting the law think it's worth the cost, according to Nolette.

“Attorneys general often say that ACA mandates are expensive and will cost the taxpayers more if they don’t try to fight it now. Some also say they are fighting for constitutional principles that are priceless."

Mattie covers all things health for Governing.

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