Evers reverses on Obamacare suit
The governor won’t tell attorney general to withdraw from the litigation.
MADISON - Less than 24 hours after Gov. Tony Evers told a statewide audience he is directing the state’s attorney general to withdraw Wisconsin from a lawsuit to overturn the Affordable Care Act, he reversed himself.
Evers in his first State of the State address Tuesday said he “fulfilled a promise I made to the people of Wisconsin by directing Attorney General (Josh) Kaul to withdraw from a lawsuit that would gut coverage for 2.4 million Wisconsinites who have pre-existing conditions.”
But after Republicans accused Evers of directing Kaul to take an illegal act, Evers’ spokeswoman, Melissa Baldauff, on Wednesday said Evers “has not directed the attorney general to take any specific course of action; he has simply withdrawn his authority for this lawsuit.”
The Republican-controlled Legislature passed laws in December to shift powers from Evers and Kaul to the Legislature, including the power to withdraw from lawsuits.
Wisconsin is one of 20 states suing in federal court to overturn the Affordable Care Act.
Evers in a letter to Kaul dated Tuesday said he was “immediately withdrawing the authority previously provided” under state law “for Wisconsin to participate in litigation over the Affordable Care Act in Texas, et al. v the United States.”
But in his speech that night, Evers explicitly said he was directing Kaul to withdraw from the lawsuit.
Evers pivoted on the issue just hours after a nonpartisan attorney for the Legislature drafted a memo that contended Evers doesn’t have the power to get Wisconsin out of the lawsuit under the new law.
“There is thus no provision in (a statute cited by Evers) allowing the governor to request, require, or approve the attorney general to compromise or discontinue an action,” Sarah Walkenhorst, an attorney with the Legislative Reference Bureau, said.
In a case such as this one, only the Legislature’s Joint Finance Committee
has the power to decide to end Wisconsin’s participation in the case, Walkenhorst wrote.
She drafted the memo at the request of Senate Majority Leader Scott Fitzgerald, a Juneau Republican.
Kaul did not say Tuesday and Wednesday what he planned to do after getting the letter from Evers, saying Evers was withdrawing his authorization for the lawsuit. Kaul is a Democrat who on the campaign trail agreed with Evers that the state should not be involved in the case.
Republican leaders of the state Assembly said after Evers’ speech they believed the governor was directing Kaul to take an illegal act. Baldauff said Wednesday’s explanation was in response to the claim that Evers was seeking to act contrary to the law.
“Gov. Evers does not believe in spending taxpayer dollars on a lawsuit that seeks to strip health care protections from millions of Wisconsinites,” Baldauff said.
Just before he was sworn in, Evers signaled in a Milwaukee Journal Sentinel interview that he would not follow parts of the lame-duck laws. But the next day he said he had “no intent of breaking the law.”
A week later, Evers said he planned to tell Kaul to change Wisconsin’s stance in the lawsuit. That appeared to be a way to get Wisconsin to side with states that have joined the lawsuit to argue for keeping the health care law in place.
But with his speech and letter, Evers went further and said he was trying to get Wisconsin out of the lawsuit entirely.
Michael Maistelman, an attorney who often represents Democrats, said he believed Evers and Kaul should push the issue and try to get the state out of the lawsuit. He said he did not think Republican lawmakers had the ability to put in place the law requiring their approval to get out of the lawsuit.
Overseeing litigation is a core function of the executive branch of government and legislators can’t dictate how it is conducted, he argued.
“You can’t strip a constitutional officer of his constitutional power or her constitutional power,” Maistelman said.
He said Kaul should tell the federal court that Wisconsin is withdrawing from the case. That would force Republican lawmakers to go along with Kaul’s action or make the case to the judge that Kaul didn’t have the power to do that, Maistelman said.
“Inevitably, it’s going to be tied up in litigation,” he said.
Wisconsin is one of more than a dozen states involved in the case and the lawsuit will continue whether Wisconsin stays in it or gets out of it. But Maistelman said the case could provide a vehicle for settling an issue that will be important for years to come — who decides what lawsuits the state is involved in.