Governor, Attorney General Play Hot Potato With Obamacare Lawsuit


Yesterday I reported that North Dakota Attorney General Wayne Stenehjem had joined the state to an amicus brief filing siding with the Obama administration in the King vs. Burwell case, widely seen as the last opportunity to overturn Obamacare in the courts.

That raised some eyebrows since most North Dakotans are pretty squarely on the record as disliking Obamacare (see this recent poll). But when Stenehjem responded by my inquiry about the filing, he stated that it was Governor Jack Dalrymple’s idea.

I wrote about it at Watchdog today:

North Dakota is joined to an amicus brief filed by the attorneys general of 24 states siding with the president. Attorney General Wayne Stenehjem is the only Republican to sign the document.

But whose idea it was to sign isn’t clear. According to Stenehjem, the filing came at the suggestion of Gov. Jack Dalrymple.

“The North Dakota Legislature declined to establish its own health care exchange and instead rely on the federal government’s exchange, in part because of the belief that the state participants would be eligible for federal income tax credits for a portion of their health insurance premiums,” Stenehjem said in an emailed statement to “Since the income tax liability of as many as 11,000 North Dakotans will be affected by the outcome of this US Supreme Court decision, the Governor has suggested that the voice of the ND taxpayers should be heard by joining in a legal brief intended to provide assistance to the Court in their decision making.”

After Stenehjem pointed his finger at Governor Dalrymple as the one suggesting the filing, I got in touch with the Governor’s office. Their memory of the provenance of the filing was a little bit different. The Governor’s spokesman said that while Dalrymple supports the filing,the decision was the Attorney General’s:

Jeff Zent, a spokesman for Dalrymlpe, remembers the provenance of the filing differently. Zent said it was the other way around.

“When the attorney general approached the governor’s office about filing the amicus brief the governor agreed that the issue must be cleared up,” Zent told Watchdog, though he acknowledged that Dalrymple supports the filing.

Any perceived support for Obamacare is politically toxic in North Dakota. A vote for the law is probably what cost Rep. Earl Pomeroy his job in 2010. Former Senators Kent Conrad and Byron Dorgan also voted for the law, and it’s telling that both men opted for retirement rather than re-election when their terms were up. Senator Heidi Heitkamp has obscured her position on the law, tempering general support for it with statements about “things” in it she doesn’t “like.”

So it’s little wonder neither Stenehjem nor Dalrymple want credit for the idea of filing this brief.

As a matter of public policy, there are 11,000 North Dakotans who may be impacted if it turns out the federal government was giving them tax credits illegally. But does that mean we can allow the federal government to simply ignore the law, as written, which obviously prohibits subsidies through the federal exchange?

And as a matter of politics, what in the world is Stenehjem doing as the only Republican signed up with 23 Democrats on this brief?