King vs. Burwell is a case before the Supreme Court challenging the legality of a central piece of Obamacare policy. It relates to a dispute over how the law distributes subsidies for health insurance plans.
Currently the federal government is subsidizing insurance plans whether they’re purchased through the state-run exchanges or the federal exchange (North Dakota is a part of the latter). But according to the actual text of Obamacare, the federal government is only authorized to provide subsidies through state-based exchanges.
Since only 14 states set up their own exchanges, it’s pretty easy to understand why the feds have so far been ignoring the law. But plaintiffs in King vs. Burwell and other lawsuits want the law followed, and some Obamacare critics say these cases could spell the end to the highly controversial policy.
Put simply, King vs. Burwell is probably the last chance Obamacare opponents have to overturn the law in the courts.
So would it surprise you that Attorney General Wayne Stenehjem, who joined North Dakota to a previous lawsuit challenging the constitutionality of Obamacare, has signed on to an amicus brief siding with the Obama administration in the case?
You can read the brief here. It is signed by the attorneys general of 24 states, of which Stenehjem is the only Republican. The rest are Democrats.
The brief argues the premise of the plaintiff’s lawsuit – that the federal government wanted to use subsidies to lure states into establishing their own exchanges – is wrong since Congress didn’t include any consequences for states deciding against running their own exchanges.
I’ll leave it to you readers to decide whether or not that argument holds water – it seems to me that SCOTUS already struck down a punitive provision of Obamacare targeting the states, and that the absence of such a provision here is irrelevant in terms of the intent of the subsidies – but the larger question is, what in the world is Wayne Stenehjem doing?
I reached out to his spokeswoman, Liz Brocker, who told me via email, “We have no comment at this time.”
Politically speaking, this doesn’t seem to be a good move for Stenehjem. North Dakotans, by large majorities, disapprove of Obamacare as policy. Signing up as the only Republican among a group of Democrats in opposition to this lawsuit gives our friends on the left some ammunition to claim that criticism of the lawsuit is bipartisan (even though Stenehjem is the token Republican).
It’s been rumored in Republican circles that Stenehjem might want to take a shot at the Governor’s office in 2016 if incumbent Jack Dalrymple decides not to run for re-election. Stenehjem has a lengthy track record of winning on the statewide ballot by wide margins, but he’s largely faced creampuff candidates. And it’s hard to say how much support his nomination bid might get if he’s tied to something like this.
UPDATE: Stenehjem has provided this comment about the lawsuit:
“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,” Attorney General Wayne Stenehjem.