Attorney General Josh Kaul has withdrawn Wisconsin from a multistate lawsuit seeking to declare the Affordable Care Act (ACA) unconstitutional. Wisconsin and Texas had originally led the litigation under former Wisconsin Attorney General Brad Schimel. The lawsuit argues that the ACA’s individual mandate is unconstitutional, and, because the individual mandate is “essential” to the ACA, the remaining provisions of the law are also invalid. A federal district court in Texas ruled the ACA unconstitutional in December, and the decision is currently pending appeal.
Act 369, passed during last December’s extraordinary, lame-duck session, had required approval of the legislature before the attorney general could withdraw from the lawsuit. A Dane County circuit court enjoined the enforcement of Act 369 in a case seeking to declare the entire 2018 extraordinary session unconstitutional. The Wisconsin Court of Appeals stayed the temporary injunction, but a second Dane County judge enjoined the Act 369 provisions requiring legislative oversight of attorney general actions in a separate case. After the first circuit court decision enjoining enforcement of Act 369, Kaul filed a motion to withdraw Wisconsin from Texas v. United States. The federal district court approved Kaul’s motion to withdraw on April 2.