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Resolution demands attorney general follow the law

By M.D. Kittle

MADISON —A resolution moving through the Republican-led Legislature would make Wisconsin’s “hyper-partisan” Attorney General Josh Kaul do what he has often failed to do: Follow the law.

Last week, Speaker Robin Vos (R-Burlington) and Senate Majority Leader Devin LeMahieu (R-Oostburg) sent Kaul a letter urging him to join more than a dozen of his fellow attorneys general in a lawsuit against the federal government. The suit takes aim at the $1.9 trillion American Rescue Plan Act’s prohibition against states using the funding to cut taxes. ARPA, at the same time, allows states to increase taxes on their residents without restriction.

While the COVID relief act pours a combined $350 billion into state coffers, the funding comes with some unconstitutional strings attached, the lawmakers wrote.

“Wisconsin citizens deserve to have the ability to budget for themselves without the interference of bureaucrats a thousand miles away in Washington, D.C.,” the Republican leaders added.

Kaul, a Democrat, brushed aside his legal obligation, injecting his liberal politics into his response to the lawmakers.

“If the Majority Leader and Speaker would like to use federal funding to cut taxes, they should expand Badgercare, saving a huge amount of state tax money, rather than advocating for Wisconsin to join a strained lawsuit,” he said.

Kaul didn’t go into why he thinks the lawsuit is “strained” in his pithy response — as one might expect from a  former Perkins Coie attorney who had a lackluster career as an assistant U.S. attorney in Baltimore.

But Kaul’s resistance to join the lawsuit is uncalled for — and in defiance of the law.

Republicans point to state law that requires the attorney general to represent the state if “requested by the governor or either house of the legislature.” That involves civil or criminal matters “in which the state or the people of this state may be interested.”

Federal overreach into the state’s legislative authority and the potential for lower taxes certainly would fall under the “interested” category.

On Tuesday, the Assembly passed on a party-line vote a resolution directing Kaul to join the state as a plaintiff in the federal lawsuit, State of West Virginia, et al., v. US Department of the Treasury, et al. The Senate takes up the resolution on the floor today.

The resolution asserts the federal funding law sets up “an untenable” choice for states, forcing them to choose between control over a core function of their “inherent sovereign powers” or forfeit the funding.

The mandate, according to the resolution, “usurps the ability of citizens to reduce their tax burdens and creates an impermissible chilling effect on their elected officials to do the same — based on a threat that the federal government may claw back some or all of the states’ share of critical ARPA funding.”

State Rep. Mark Born (R-Beaver Dam), co-chair of the Legislature’s Joint Finance Committee, said the federal funding conditions are a clear violation of the Tenth Amendment and the separation of powers. He said it’s political why Kaul can’t see that.

“It’s disappointing the way the attorney general has been such a hyper-partisan, so focused on hyper-partisan issues and not what is best for Wisconsin,” Born said.

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