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Attorney General Josh Kaul spoke with Rep. Gary Hebl, D-Sun Prairie, in the Wisconsin Assembly chambers Tuesday night.

A legal analysis prepared Wednesday by a legislative attorney says Gov. Tony Evers does not have the authority to order the state's attorney general to withdraw from a lawsuit challenging the Affordable Care Act, despite Evers' declaration on Tuesday that he would do so.

Responding to comments made by Republican lawmakers that the governor had directed Attorney General Josh Kaul to act illegally, an Evers spokeswoman said Evers is not directing Kaul to take any particular action.

Senate Majority Leader Scott Fitzgerald, R-Juneau, requested the memo from the nonpartisan Legislative Reference Bureau after Evers announced in his State of the State address that he had sent Kaul a letter directing him to pull Wisconsin out of the multi-state lawsuit. 

"The people of Wisconsin voted for a change this November and asked us to stop playing politics with their health care," Evers said in his speech. "That’s why I’m announcing tonight that I have fulfilled a promise I made to the people of Wisconsin by directing Attorney General Kaul to withdraw from a lawsuit that would gut coverage for the 2.4 million Wisconsinites who have pre-existing conditions."

According to the memo, Kaul can only withdraw the state from the lawsuit with the approval of the Legislature's Joint Finance Committee. 

Last year, then-Gov. Scott Walker authorized then-Attorney General Brad Schimel to join a lawsuit challenging the constitutionality of the Obama-era health care law. 

Evers and Kaul both campaigned on a promise to remove the state from the lawsuit, but Evers' power to do so without legislative approval was removed in a set of laws passed by the Republican-led Legislature after he was elected. A federal judge in Texas ruled the ACA unconstitutional in December, but it is still being enforced as the lawsuit is appealed.

Addressing the Legislature Tuesday evening, Evers said he had sent Kaul a letter instructing him to pull out of the lawsuit. 

"I cannot continue to allow the use of taxpayer resources toward a lawsuit that could undermine the health security of the people of the state," Evers wrote in a letter that was hand-delivered to Kaul on Tuesday.

In the letter, Evers said he is "immediately withdrawing the authority provided" by a section of state law that previously allowed Wisconsin to enter the case. 

According to the LRB analysis provided to Fitzgerald, the statute Evers cited addresses the governor's ability to request the attorney general join a lawsuit, but not the authority to withdraw. A separate statute — changed in the recent lame-duck session — previously allowed a governor to authorize such a withdrawal, but under the changes approved in December, the attorney general can only exit a lawsuit with the approval of the Legislature's Joint Finance Committee. 

"The governor has not directed the attorney general to take any specific course of action, he has simply withdrawn his authority for this lawsuit," said Evers spokeswoman Melissa Baldauff in a statement. "Gov. Evers does not believe in spending taxpayer dollars on a lawsuit that seeks to strip healthcare protections from millions of Wisconsinites."

Kaul, asked by reporters Tuesday night about Evers' instructions, said he would respond to the request "promptly."

"The Department of Justice will act consistently with the law," Kaul said. 

A DOJ spokeswoman did not immediately respond to a request for comment on the LRB memo.

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Jessie Opoien is the Capital Times' opinion editor. She joined the Cap Times in 2013, covering state government and politics for the bulk of her time as a reporter. She has also covered music, culture and education in Madison and Oshkosh.

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