Wayne Stenehjem's Obamacare Problem Is That He Didn't Stand Up For The Rule Of Law

Fargo businessman Doug Burgum has been trying to convince voters that his opponent in the NDGOP’s gubernatorial primary, Attorney General Wayne Stenehjem, is a big, fat Obamacare lover because he signed an amicus brief siding against a lawsuit, King v. Burwell, aiming to take Obamacare down.

“Washington, D.C. meddling in North Dakota is never good. And Obamacare has been terrible,” Burgum’s recent television ad states. “But who was the only Republican Attorney General to support Obamacare? Surprisingly, Wayne Stenehjem.”

The problem for Burgum is that this statement is easily debunked, as state Senator Judy Lee (R-Fargo) does in a letter to the Grand Forks Herald today. “Not only did Stenehjem as our attorney general join with many other states early on to oppose Obamacare, he has long opposed its violations of states’ rights,” she writes.

The point being that Stenehjem does not and never has supported Obamacare as policy.

This was a blunder by Burgum. Instead of trying to claim something false about Stenehjem – that he supports Obamacare – Burgum should have pointed out that Stenehjem put emotion above the rule of law. That’s where Stenehjem really does deserve criticism.

Consider this, also from Senator Lee’s letter:

Obamacare requires that everyone buy insurance, and this suit would have taken away the subsidies. Though Stenehjem is opposed to Obamacare, he recognized the hardship that this lawsuit would have placed on many North Dakotans, and he fought to prevent that from happening. The Supreme Court agreed with this reasoning and ruled that subsidies should be available to all citizens, regardless of whether they were getting their insurance through a state-based exchange or the federal exchange.

That’s an emotional argument, and not one I necessarily disagree with. As bad as Obamacare is as public policy, it would have been a grave injustice to mandate that people purchased insurance only to yank away subsidies they relied on to make those purchases. Stenehjem himself told me that would have been “unconscionable.”

But King v. Burwell wasn’t about how we feel about taking subsidies away from people forced by law to purchase health insurance. It was about the rule of law.

Wikipedia has a succinct explanation, but in a nutshell the text of Obamacare authorized subsidies for people “enrolled in through an Exchange established by the State.”

The thing is that most states didn’t establish an exchange, and millions upon millions of people from those states purchased their insurance through a federal exchange. A strict reading of the Obamacare law makes it clear that subsidies were not authorized for those people. Because it says “established by the State.”

Unfortunately the Obama administration decided to interpret this crystal clear bit of law to mean that subsidies were authorized for both the state-based and federal exchanges.

That’s the reasoning Stenehjem and the Democratic attorneys general sided with in their amicus brief (and ultimately what a majority on the Supreme Court bought into). That’s what I criticized Stenehjem for when I was the first in state to report that he’d signed this amicus brief more than a year ago.

Think what you want about Obamacare. Think what you want about the injustice of yanking subsidies away from people forced to sign up through a federal exchange for health insurance. But the law is the law and should be followed as written. The executive branch shouldn’t get to simply re-write the law when it’s clear meaning is inconvenient.

That’s what Burgum should have focused on. Instead, he went for the cheap, and untrue, political attack. Maybe because he thinks “Stenehjem supports Obamacare” plays better with low information voters.