Tony Evers

Gov. Tony Evers enters the Assembly chamber before his first State of the State address. 

In another change of course, Democratic Gov. Tony Evers Thursday sought to withdraw Wisconsin from a multi-state lawsuit seeking to invalidate the Affordable Care Act — this time by seeking legislative approval.

The new strategy announced Thursday comes a day after the governor reversed course on a vow to withdraw the state from the litigation less than 24 hours after making the commitment in his first State of the State speech.

Evers’ decision to backtrack on his proposal came the same day he received a letter from Kaul, who said Evers likely does not have the legal authority to withdraw from participation in the suit.

“My view is that, notwithstanding your letter, DOJ does not have statutory authority to withdraw the State from the ACA litigation absent approval from the Joint Committee on Finance,” Kaul wrote.

Kaul, in a letter Thursday to the JFC co-chairs — Rep. John Nygren, R-Marinette, and Sen. Alberta Darling, R-River Hills — requested the committee promptly approve his request to withdraw from the suit.

Kaul’s formal request to withdraw comes two days after Evers told Kaul he had withdrawn the authority for the state to participate in the suit. But as Kaul later made clear, the governor under Wisconsin’s new lame-duck law has no say over ending participation in lawsuits; the Joint Finance Committee now has that authority.

Nygren and Darling, through spokesmen, said they will consider Kaul’s request but need to discuss it with others in the Republican caucus.

Assembly Speaker Robin Vos, R-Rochester, who was quick to characterize Evers’ original vow to withdraw as an illegal action, slammed Evers’ stance Thursday.

“The Legislature is a co-equal branch and will be watching carefully for the next law he tries to break,” Vos said in a statement.

A Vos spokeswoman said Assembly Republicans have not yet discussed Kaul’s request to withdraw.

In a statement, Evers spokeswoman Melissa Baldauff chastised Republicans for what she described as a diversion from Evers’ plans to protect the health care of Wisconsinites who could lose coverage if the Affordable Care Act were invalidated.

A federal judge in Texas struck down the law; however, the case is currently on appeal.

“This conversation about how exactly the DOJ will comply with a law intended to strip the governor’s authority and undermine the will of the people is frankly a distraction that Republicans clearly wanted,” Baldauff said.

In a statement, Senate Majority Leader Scott Fitzgerald, R-Juneau, praised Evers and Kaul for complying with the law by channeling the request to withdraw through the state’s budget writing committee.

“I appreciate Attorney General Kaul joining with Republicans to respect the rule of law and I am glad that Governor Evers is dropping his lawless actions,” Fitzgerald said in a statement. “Hopefully, Governor Evers will respect the process moving forward.”

Evers’ multiple changes in direction over the past week came after a Legislative Reference Bureau report requested by Fitzgerald showed Evers does not have the legal authority to drop the state’s involvement in the case on his own.

“There is thus no provision … allowing the governor to request, require or approve the attorney general to compromise or discontinue an action,” LRB lawyer 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.”

In response, Baldauff walked back the vow Evers made in his State of the State address Tuesday to direct the attorney general to withdraw from the litigation.

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