the national interest

The Republican Plan to Repeal Obamacare for Everybody But Alaska Might Be Unconstitutional

Lindsey Graham forgot to read the Constitution. Photo: Rainier Ehrhardt/AP

“We’re very interested in helping Alaska because Alaska has 750,000 people. And a land mass bigger than Texas,” Senator Lindsey Graham told reporters the other day. Graham may not understand much about health-care policy, but he understands politics, and he recognizes that a state with a tiny population whose senator represents the crucial vote on his Obamacare-repeal bill is ripe for a payoff.

Graham’s bill gives Alaska especially generous treatment. Haley Byrd reports that Republicans are offering an even more magnanimous bargain — a complete exemption from the deep cuts to Medicaid and tax credits that other states will suffer. Juliet Eilperin reports that the exemption from the cuts would apply to Alaska and Montana only — the two states would qualify on the basis of their low population density. Obamacare would be repealed in the other states, but suspiciously live on in a state whose vote Republican need really badly.

Aside from both the political ethics in general and what this reveals about the Republican argument about repealing Obamacare in particular (i.e., it exposes the notion that other states will be unharmed by its cuts), this maneuver may well be unconstitutional.

Georgetown law professor Brian Galle explains that the Constitution has a uniformity clause — Article I, section 8 of the Constitution says “all Duties, Imposts and Excises shall be uniform throughout the United States.” The purpose of the clause is to prevent coalitions of states from ganging up on others to impose discriminatory treatment.

The clause has not been tested before, but that is only because there are few cases in which the people running the government have passed a law so blatantly discriminatory.

Repealing Obamacare for 49 States Probably Unconstitutional