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Wisconsin AG, Leading ACA Critic, Loses Re-election Bid

Analysis  |  By John Commins  
   November 07, 2018

Democratic Attorney General-elect Josh Kaul vows to withdraw Wisconsin from a multistate suit that challenges the constitutionality of the Affordable Care Act.

A lead plaintiff among the 20 Republican attorneys general suing to dismantle the Affordable Care Act has lost his re-election bid, and the man who defeated him says the state will withdraw from the suit.

Wisconsin Attorney General Brad Schimel narrowly lost to Democrat Josh Kaul by about 22,000 votes in Tuesday's statewide election that also saw the defeat of embattled three-term Republican Gov. Scott Walker to Democrat Tony Evers.

Schimel is a lead plaintiff in a suit brought by 20 Republican attorneys general who argue that the ACA is unconstitutional.

Led by Texas Attorney General Ken Paxton, who won re-election on Tuesday, the Texas v. Azar plaintiffs claim that the ACA became unconstitutional when Congress zeroed-out the tax penalty for the individual mandate, thus invalidating the sweeping legislation in its entirety.  

The case was argued before U.S. District Judge Reed O'Connor in early September, but O'Connor has yet to issue a ruling.

When the suit was filed in February, Schimel said the ACA's "irrational design wreaks havoc on health insurance markets."

"Obamacare causes premiums to rise and coverage to fall, forcing Wisconsin and other states to take extreme, costly measures to protect their citizens' health and pocketbooks," he said.

"I bring this challenge to Obamacare because, as Wisconsin's attorney general, I swore to uphold the rule of law and protect our state from overreaching and harmful actions from the federal government."

It's not clear if Schimel's vocal role in the ACA suit was a factor in his narrow defeat, but the state's AG-elect made it clear Wednesday that he would reverse course.

In his acceptance speech, Kaul, a former federal prosecutor, pledged to work with Evers to withdraw Wisconsin from Texas v. Azar.

Kaul also pledged to expand Medicaid coverage to about 80,000 people under Wisconsin's Badgercare program, which he said would save the state about $190 million a year.

Paxton, a conservative Republican in deep red Texas, won re-election after defeating Democrat Justin Nelson by four percentage points.

During the campaign, Nelson accused Paxton of filing the suit to distract voters away from his felony indictments for securities fraud, for which he is awaiting trial.  

"I will withdraw Texas from the lawsuit on my first day on the job," Nelson told POLITICO.

"Texas has one of the worst rates of uninsured people and one of the highest rates of pre-existing conditions in the country," he said. "We should be the leader in fighting to protect people from insurance companies, but instead we're the face of the lawsuit to end coverage of pre-existing conditions."

Nationwide, Republican attorneys general in Wisconsin, Nevada, Colorado and Michigan lost to Democrats, but no Democrats lost to Republicans, according to Ballotpedia.

Colorado's Democratic AG-elect Phil Weiser, a former Obama administration staffer, told Colorado Public Radio that one of his first actions would be to join the 17 Democratic attorneys general intervening to defend the ACA in Texas v. Azar.  

"I'm not prepared to tell you which is the first lawsuit Colorado will join when I become AG, but I will tell you one of the first is standing up for the protection of the ACA against the action by the Texas AG and others to undermine this critical protection," Weiser told CPR.

The other Republican states that joined the Texas v. Azar lawsuit are Alabama, Arkansas, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Maine, Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Utah and West Virginia.

Led by California, Democratic attorneys general from 17 states and the District of Columbia have filed a motion to intervene. Those states are Connecticut, Delaware, Hawaii, Illinois, Kentucky, Massachusetts, Minnesota, North Carolina, New Jersey, New York, Oregon, Rhode Island, Virginia, Vermont, Washington, and the District of Columbia.  

John Commins is a content specialist and online news editor for HealthLeaders, a Simplify Compliance brand.


Ousted Wisconsin Republican AG Brad Schimel had been a vocal proponent of dismantling the Affordable Care Act.

Texas Republican AG Ken Paxton, the lead plaintiff in Texas v. Azar, survives a strong challenge from Democrat Justin Nelson.

Colorado Democratic AG-elect Phil Weiser vows to join Democratic intervenors in Texas v. Azar.

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