Analysis: Evers can’t pull Wisconsin from health lawsuit

Gov. Tony Evers lacks the authority to withdraw Wisconsin from a lawsuit seeking repeal of the federal health care law, an attorney for the nonpartisan Legislative Reference Bureau said Wednesday.

The memo sent Wednesday to Republican Senate Majority Leader Scott Fitzgerald comes a day after Evers announced in his State of the State speech that he was directing Attorney General Josh Kaul, a fellow Democrat, to get out of the lawsuit.

Both Evers and Kaul campaigned in support of getting Wisconsin out of the lawsuit filed in federal court in Texas. A judge in December ruled that the Affordable Care Act is unconstitutional, but the law’s provisions remain in effect while the case is under appeal .

Wisconsin Republicans in last month’s lame-duck session passed a bill giving the Legislature’s GOP-controlled budget committee the power to withdraw from lawsuits. Previously, the governor had that authority.

But in defiance of that law, Evers on Tuesday directed Kaul to get out of the lawsuit.

Kaul, who applauded the line during Evers’ speech, promised to have a prompt response “in accordance with the law.”

The memo from LRB attorney Sarah Walkenhorst said that under the lame-duck law only the Legislature’s Republican-controlled Joint Finance Committee, and not the governor, can discontinue a lawsuit.

“Current law is very clear: in order for Wisconsin to withdraw itself from any lawsuit, the Department of Justice must first seek legislative approval,” Fitzgerald said in a statement. “Any action that Attorney General Kaul takes must follow state law.”

Democrats, including Kaul and Evers, hammered Republicans during the campaign for seeking repeal of the law they’ve long despised, while also supporting its most popular provisions.

Republicans tried to mute that argument by passing a bill in the Assembly on Tuesday guaranteeing coverage for pre-existing conditions that would take effect if the Affordable Care Act is repealed.

Democrats who opposed it argued it was a stunt that wouldn’t work as intended. Still, 16 Democrats voted for the measure.

Wisconsin got involved in the lawsuit last year under the order of then-Gov. Scott Walker , a staunch opponent of the federal health law.

Evers campaigned on the promise that on his first day in office he would order the state to withdraw from the case. But Republicans blocked him through the lame-duck session law transferring authority for withdrawing from the lawsuit from the governor to the Legislature.

Evers initially said he was going to ask Kaul to change the state’s “stance” in the lawsuit, hinting that maybe he would try something short of withdrawing.

The lame-duck law doesn’t appear to prevent Evers from ordering Kaul to change positions — from being among the states supporting repeal of the law to those defending it — said Tim Jost, a professor emeritus at Washington and Lee University School of Law in Virginia, a supporter of the ACA who has followed the issue closely.

But Evers asked for withdrawal, not a change in position.

Often lost in the political fight over the lawsuit is what impact, if any, it would have on Wisconsin no longer being among the 20 states suing.

“Probably, legally at this point it makes no difference if Wisconsin is involved or not,” Jost said.

“Politically, I’m not sure it makes any difference either, except this is sort of a ballroom brawl in Wisconsin.”
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