At a gubernatorial nomination debate in Rugby last week candidates Doug Burgum and Rick Becker hit Attorney General Wayne Stenehjem (who didn’t attend, shame on him) over an amicus brief he filed opposing an anti-Obamacare lawsuit.
They’re talking about the King vs. Burwell case, and the candidates probably know about the issue because I wrote about it back in February of last year.
“Mr. Stenehjem also filed an amicus brief with 23 other Democrat attorneys general in King v. Burwell, which was identified as the last hope to overturn Obamacare,” Becker told the crowd in Rugby.
I should note that Stenehjem was the only Republican attorney general to sing the brief, which you can read here.
“I find that shocking that our attorney general would be the only Republican on that list along with Democratic attorney generals California, New York, Massachusetts and other places and that’s, again, disappointing,” Burgum said.
The candidates are right. It is absolutely disappointing that Stenehjem signed on to the brief.
The King vs. Burwell case, 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.
When I asked Stenehjem last year why he signed on to the brief he kind of tossed the hot potato, suggesting he did so at the behest of Governor Jack Dalrymple. Here’s 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.
The thing is, when I asked Dalrymple spokesman Jeff Zent about the brief he told a different story from Stenehjem implying that the impetus for the brief started in the Attorney General’s Office.
“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.
Now that Stenehjem is campaigning to be governor of a state where Obamacare is deeply unpopular I think he probably owes voters an explanation for this.
Burgum and Becker are right to hit on it.
Here’s the full text of the brief: