The “Alaska Purchase” is probably unconstitutional

As Republican leadership searches for the 50th vote in favor of Graham-Cassidy, their apparently randomly chosen vehicle for repealing the Affordable Care Act, rumors abound of a sweetheart deal aimed at securing Sen. Lisa Murkowski’s vote. The so-called Alaska Purchase would maintain existing premium federal tax credits for those purchasing health insurance on the individual market, but only in Alaska and Hawaii. Sen. Mike Lee’s office told the Daily Beast that he’s been assured there will be no “Alaska Purchase,” but that same report describes the “Alaska Purchase” as an “offer” that has been made that would create this tax carve-out for multiple smaller states. Can Congress do that?

Probably not. Article I, Section 8 of the Constitution says “all Duties, Imposts and Excises shall be uniform throughout the United States.” Former Supreme Court Justice Joseph Story, writing in 1834, thought that the point of that provision was to prevent coalitions of states from ganging up, in Congress, to benefit themselves at the expense of others. While the “uniformity clause” has been watered down over time, it should still be enough to swamp the “Alaska Purchase” proposal. Ironically, South Carolina Sen. Lindsey Graham—the Graham of “Graham-Cassidy”—recognized the potential constitutional problems inherent in such a scheme seven years ago during the Obamacare debates: In 2010, he reportedly asked his state’s attorney general to look into the constitutionality of a similar proposal known as the “Cornhusker Kickback” that would have benefited Nebraska.