Democratic Gov. Tony Evers Wednesday walked back a vow he made to withdraw the state from the Affordable Care Act lawsuit less than 24 hours after making the commitment in his first State of the State address.
“The governor has not directed the attorney general to take any specific course of action, he has simply withdrawn his authority for this lawsuit,” Evers spokeswoman Melissa Baldauff said in a statement.
Evers’ reversal comes after the release Wednesday of a memo from the nonpartisan Legislative Reference Bureau that splashed cold water on the governor’s plans to withdraw Wisconsin from an ongoing multi-state lawsuit seeking to invalidate the ACA.
The memo, sent to Senate Majority Leader Scott Fitzgerald, R-Juneau, states there is no legal way for the new governor to fulfill his campaign promise to withdraw the state from the suit.
“There is thus no provision … allowing the governor to request, require or approve the attorney general to compromise or discontinue an action,” LRB attorney Sarah Walkenhorst wrote. “It is only the Joint Committee on Finance that has the authority to approve any compromise or discontinuance of an action in which the attorney general’s participation was requested.”
Evers in Tuesday’s State of the State address clearly stated he would seek to end the state’s participation in the lawsuit.
“I’m announcing tonight that I have 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 the 2.4 million Wisconsinites who have pre-existing conditions,” Evers said in his address.
Evers’ proposal drew immediate ire from Republicans, who described the potential move as an illegal action.
“If you’re going to direct the top cop in Wisconsin to take an illegal action, I think everybody should be concerned,” said Assembly Majority Leader Jim Steineke, R-Kaukauna, after Evers’ speech.
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Assembly Speaker Robin Vos, R-Rochester, late Wednesday took to social media to scold Evers.
“This was the story statewide today and now after it’s found to be illegal they are saying they never said it?” he wrote on Twitter.
Evers used different wording in a letter to Kaul, stating, “I am immediately withdrawing the authority previously provided under (state law) for Wisconsin to participate in litigation over the Affordable Care Act.”
Under previous law, Evers would have had the authority to withdraw the state from the suit. But that all changed after Republicans in December passed their controversial lame-duck law, which eliminated the governor’s ability to remove the state from lawsuits without legislative approval.
Kaul after the State of the State address declined to provide detail on if and how he would withdraw the state from the lawsuit, except to say that the Department of Justice would remain consistent with the law.
A Kaul spokeswoman did not respond to a request seeking comment on whether Kaul is still reviewing options to get out of the lawsuit.
UW-Madison law school professor Miriam Seifter said there are two legal theories that might explain Evers’ instruction to Kaul.
Evers or Kaul could argue the provision in the lame-duck law requiring Joint Finance Committee approval to withdraw is unconstitutional.
Or, they could argue the law doesn’t apply to a withdrawal from the suit.
Because Wisconsin and other challengers won in the federal district court in Texas, the next step is the appeal, which will move forward whether or not Wisconsin participates.
“There might be disagreement about exactly which types of litigation decisions fall within the phrase ‘compromised or discontinued,’” Seifter said.