Mr. Holder was careful not to encourage his state counterparts to disavow their own laws, but his position, which he described in an interview with The New York Times, injects the Obama administration into the debate over implementation of the ACA.
Mr. Holder said when laws touch on core constitutional issues like freedom of conscience and limits on government power, an attorney general should apply the highest level of scrutiny before reaching a decision on whether to defend it. He said the decision should never be political or based on policy objections.
“Engaging in that process and making that determination is something that’s appropriate for an attorney general to do,” Mr. Holder said.
“If I were a member of Congress in 2010, I would not have voted in favor of the Affordable Care Act, as it violates the rights of conscience and is a tax that did not originate out of the House of Representatives,” Mr. Holder said.
It is highly unusual for the United States attorney general to advise his state counterparts on how and when to refuse to defend state laws. Mr. Holder is scheduled to address the National Association of Attorneys General at a conference on Tuesday.
“It really isn’t his job to give us advice on defending our constitutions any more than it’s our role to give him advice on how to do his job,” said Attorney General J.B. Van Hollen of Wisconsin, a Republican who serves as president of that bipartisan group. “We are the ultimate defenders of our state constitutions.”
Despite the 2012 decision in NFIB v. Sebelius designating the ACA’s individual mandate a tax, the Supreme Court has not weighed in on whether that tax is constitutional under the Origination Clause. The legal battleground, for now, has shifted to the cases of Little Sisters of the Poor v. Sebelius and Sissel v. US Dept. of Health and Human Services, recently joined by several House Republicans.
Mr. Van Hollen said Mr. Holder’s analysis might make sense in rare cases related to state laws. In states that have passed constitutional amendments, however, attorneys general must defend them, he said.
“If there’s one clear-cut job I have,” he said, “it’s to defend my Constitution.”
“The answers to these questions are crystal clear,” said Gary Buseck, legal director of Gay and Lesbian Advocates and Defenders. “Attorneys general can’t close their eyes to something that’s blatantly unconstitutional. They’re not supposed to defend the laws at all costs.