The U.S. Department of Justice (U.S. DOJ) announced this week it will not defend the constitutionality of the Affordable Care Act (ACA) in Texas v. United States. In a letter to Speaker Paul Ryan, U.S. DOJ said it will side with plaintiffs Wisconsin Attorney General Brad Schimel and Texas Attorney General Ken Paxton, along with 18 other states. The state attorneys general filed the brief in support of a preliminary injunction in federal district court against the federal government’s enforcement of the individual mandate of the ACA.

Congress repealed the tax penalty, yet left in place the ACA’s individual mandate, in the federal tax reform bill in December 2017. The attorneys’ general brief argues that the remaining mandate, without the tax penalty, violates the Commerce Clause of the U.S. Constitution, and Congress does not have the constitutional authority to compel citizens to purchase health insurance. The attorneys general argue further that the individual mandate makes it difficult for states to take individual actions, like Wisconsin’s reinsurance program, to regulate the insurance market.

The attorneys general brief asks the federal district court to enjoin the ACA effective Jan. 1, 2019 – the date the tax reform will officially eliminate the individual mandate. The brief comes after a February brief asking the court to rule the ACA unconstitutional and enjoin the operation of the entire law.