The Stenehjem campaign has been fairly quiet since they won endorsement at the NDGOP state convention a couple of weeks ago, but the Doug Burgum campaign continues their aggressive media campaign.
Their latest hit is an ad targeting Stenehjem over an amicus brief he signed on to with a bunch of Democrat attorneys general back in 2014. The brief was in the King v. Burwell case which was before the Supreme Court at the time. That case, which was ultimately unsuccessful, was widely seen by conservatives as one of the last chances to unravel the Obamacare law in the courts.
“Washington, D.C. meddling in North Dakota is never good. And Obamacare has been terrible,” the ad states. “But who was the only Republican Attorney General to support Obamacare? Surprisingly, Wayne Stenehjem.”
“North Dakotans know Obamacare is bad for the state, so they will be disappointed to know that Wayne Stenehjem is the only Republican attorney general who helped defend Obamacare at the Supreme Court just last year,” lobbyist and Burgum campaign adviser Bob Harms said in a press release accompanying the ad. “We know Obamacare is increasing costs for small businesses and threatening to cancel individual plans in North Dakota. With a changing economy, North Dakota can’t afford the job losses Obamacare causes.”
It’s inaccurate to say that Stenehjem supported Obamacare. He did, after all, join North Dakota to a class action lawsuit seeking to overturn Obamacare. “Nobody in North Dkaota has fought harder against Obamacare than I have,” Stenehejem told me in an interview last month (audio).
But he did oppose the Burwell case as a means of undoing Obamacare.
Burwell, you’ll remember, was about subsidies for health insurance policies bought through the federal exchange. The actual text of the Obamacare legislation states that the federal government can subsidize policies purchased through state-run exchanges, with the presumption at the time being that the states would create their own exchanges.
Only dozens of states refused to create an exchange, and the legislation did not give the feds authority to subsidize policies purchased through a federal-run exchange. In Burwell the Supreme Court said that the feds can subsidize those policies anyway despite what the law says.
It was a disappointing ruling for opponents of Obamacare, and Stenehjem was on the winning side of it.
When I asked Stenehjem about why he signed on to the amicus brief last year (before it had been settled by SCOTUS) this is what he told me (emphasis mine):
This dispute is about whether taxpayers in states without a state health care exchange are entitled to the same federal tax credits as citizens of states which chose to establish such an exchange. 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. 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.
That last bit was Stenehjem trying to throw the hot potato into Governor Dalrymple’s lap, but the governor’s spokesman Jeff Zent tossed it right back. ““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 me at the time.
When I interviewed Stenehjem last month, he said his chief concern with Burwell is that it would have pulled the rug out from under North Dakotans who signed up for Obamacare and thought they were going to get subsidies, something he described as “unconscionable.”