Analysis: Evers can’t pull Wisconsin from health lawsuit

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By SCOTT BAUER, Associated Press

MADISON, Wis. (AP) — Gov. Tony Evers lacks the authority to withdraw Wisconsin from a lawsuit seeking the repeal of the federal health-care law, an attorney for the nonpartisan Legislative Reference Bureau said on Wednesday.

The memo sent on Wednesday to 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, which was 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 last month passed a bill giving the GOP-controlled legislative budget committee the power to withdraw from lawsuits. That authority had previously belonged to the governor.

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 the LRB attorney Sarah Walkenhorst said that, according to the lame-duck law, only the Legislature’s Republican-controlled Joint Finance Committee, and not the governor, could 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 GOP lawmaker on the campaign trail last year for seeking the repeal of a law Republicans have long despised but still support in part.

Republicans tried to put an end to those contentions on Tuesday argument by passing a bill in the Assembly guaranteeing coverage for pre-existing conditions. The bill would take effect only if the Affordable Care Act were repealed.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 over the Affordable Care Act 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.

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 the 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 the state’s position.

Often lost in the political fight over the lawsuit is what effect, 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.”