During his confirmation hearing in January, Kamala Harris asked Attorney General William Barr whether he was open to reconsidering DOJ’s position on the ACA lawsuit. He succinctly replied: “Yes.”

Yesterday, the Attorney General made good on this reconsideration promise, filing a letter with the Fifth Circuit urging that court to affirm in full the lower court’s decision striking down the entire Affordable Care Act: “The Department of Justice has determined that the district court’s judgment should be affirmed.”

There is no question that all Americans – including individuals with pre-existing conditions need access to affordable health insurance – but the ACA has failed to provide affordable insurance. According to HHS, the average individual market premium on Healthcare.gov skyrocketed from $2,784 per year in 2013 to $5,712 in 2017 – an increase of 105%.  Every state using Healthcare.gov experienced an increase in individual market premiums from 2013-2017 and 62% of those states saw 2017 premiums double as compared to 2013 (three saw premiums triple).

Further, it’s important to remember the mechanism that the ACA originally employed to encourage insurance coverage: Congress attempted to force individuals to buy insurance under the Commerce Clause.  While the Commerce Clause has been interpreted broadly to permit Congress to regulate goods once they are in the stream of commerce, it has never been used to require an individual to enter the market.  The Supreme Court ultimately held such a use of the Commerce Clause unconstitutional.  And for good reason. 

That the Supreme Court provided another basis for the law in the Taxing Power still leaves the question as to whether we want a federal government that is requiring individuals to purchase certain products – even if those products are good for them.  As Justice Scalia famously remarked at oral argument, the Obama Administration’s defense of the ACA would extend to requiring consumers to purchase broccoli.  But the argument that the federal government can force people to buy broccoli because most of us need a little more green in our diets turns the Founders’ vision of a limited federal government on its head.