AG Kaul Asks Legislature for Approval to Withdraw from ACA Lawsuit

Wisconsin Attorney General Josh Kaul has sent a letter to the legislature’s Joint Committee on Finance (JFC), requesting authorization to withdraw the state from multistate litigation seeking to declare the Affordable Care Act unconstitutional. The request to withdraw comes after a back and forth between Gov. Tony Evers, Kaul, and the legislature regarding the governor’s and attorney general’s authority, as amended by the 2018 extraordinary session legislation.

In his State of the State address, Evers directed Attorney General Josh Kaul to remove Wisconsin from the lawsuit. The governor’s office subsequently delivered a letter to Kaul requesting withdrawal of the Department of Justice’s authority to participate in the litigation. However, Evers walked back the statement after a Legislative Reference Bureau memo to Senate Majority Leader Scott Fitzgerald (R-Juneau) explained that the governor does not have the authority to request the attorney general discontinue an action. Instead, the newly enacted 2017 Act 369 requires the JFC to approve the withdrawal. Kaul also sent Evers a letter stating the attorney general does not have legal authority to withdraw from the lawsuit without JFC approval.

The Republican-majority JFC is currently reviewing Kaul’s request for authorization to withdraw from the lawsuit. Wisconsin was a leader in the litigation under former Republican Attorney General Brad Schimel.