Posted by AzBlueMeanie:
I hate it when I have to agree with the Arizona Republic's über-conservative columnist Robert Robb, but even a broken clock is right twice a day, am I right?
Keep in mind that this latest column from Robert Robb is actually the strategy for a legal challenge to Governor Jan Brewer's Medicaid (AHCCCS) restoration plan, likely from his old employer, the Goldwater Institute, which is actively opposing the Governor's plan. If the Governor's plan is enacted by the legislature, the Goldwater Institute will file a lawsuit. (To his credit, Robb has written several columns arguing in favor of Governor Brewer's plan as a practical matter, much to Goldwater's chagrin I imagine).
I have had several Democratic legislators tell me that they agree with the Governor's legal analysis that the hospital bed tax is just a provider assessment that can be imposed by an agency head. I suspect this is wishful thinking. I have little confidence in the Governor's lawyers. I have previously posted that I disagree with this analysis. I believe this is rightly characterized as a tax, and any new tax requires a two-thirds super-majority vote of both chambers of the legislature to be approved under Prop. 108 (1992). This is why I have long argued for the repeal of the undemocratic Prop. 108.
Robert Robb writes, Senate passes Medicaid expansion. Or did it?
According to news reports, the Arizona Senate passed Gov. Jan Brewer’s Medicaid expansion plan. But did it really?
There are two serious legal problems with the Senate’s action. Under Brewer’s plan, the head of the state Medicaid program would establish a new provider assessment, mostly on hospitals, to pay for the state’s cost of providing coverage principally to childless adults. The state Constitution requires a two-thirds vote of the Legislature to increase state revenues, including “the imposition of any new state fee or assessment or the authorization of any new administratively set fee.” That would seem precisely on point.
Two-thirds approval would require 20 votes in the Senate. The bill containing Brewer’s Medicaid proposal only got 19.
The second legal problem is the attempt to shoehorn Medicaid expansion into the budget bills. The assessment is a revenue measure, not an appropriation. The state Constitution says that bills passed by the Legislature can only cover “one subject.” With regard to appropriations, the Constitution says: “The general appropriation bill shall embrace nothing but appropriations for the different departments of the state …. All other appropriations shall be made by separate bills, each embracing but one subject.”
The Senate hammered the Medicaid expansion into the health and welfare budget reconciliation bill, which cannot be argued to embrace but one subject. It has over 50 provisions ranging from setting reimbursement rates for Medicaid providers, to establishing county contributions for long-term care programs and the confinement of sexually-violent offenders, to requiring welfare recipients to take drug tests.
So, a very serious argument could be made that the Arizona Senate did not, in fact, pass the governor’s Medicaid expansion proposal.
Actually the Senate did pass it, but the Senate action can be legally challenged as constitutionally invalid. Assuming that the legislature enacts Governor's Brewer's plan and she signs it into law, this will require litigation to set it aside.
While it ain’t over ‘til it’s over, it seems clear that Medicaid expansion can’t get the two-thirds approval needed to be cleanly enacted under the state Constitution. Referring it to voters would require only a simple majority, which the proposal seems to have.
If the expansion is enacted without a two-thirds approval, or buried within a budget reconciliation bill, opponents will sue. So far, Brewer and the hospitals, the financial interest with skin in the game, prefer the litigation risk to the electoral risk.
If the consequences weren’t so great, I’d say they were making a bad bet. It seems to me a slam duck that the assessment requires a two-thirds vote and Medicaid expansion has to be passed as a stand-alone bill.
But courts get shy when the consequences are large. And the consequences in this case would be monumental.
This is an excellent point. You will recall that when the legislature enacted the AHCCCS enrollment freeze as part of its budget cutting package, a lawsuit was filed on the grounds that the legislature's actions violated both the Healthy Arizona Prop. 204 (2000) and the Voter Protection Act, Prop. 105 (1998).
Rather than require the legislature to restore the funding in compliance with the will of Arizona voters in enacting these two citizens initiatives, the court claimed an ambiguity in Prop. 204 and relied on the separation of powers doctrine of a political question to rule that the court was powerless to compel the legislature to restore the funds under Prop. 204. The collateral damage was that the court largely disregarded the mandate of the Voter Protection Act, rendering it no protection at all, the voters be damned.
I am disinclined to believe that the court is willing to render Prop. 108 (1992) null and void to sustain Governor Brewer's AHCCCS restoration plan. Prop. 108 has been the firewall for anti-tax zealots in this state ever since it was enacted. The Arizona legislature has not enacted a new tax in the past 20 years.
The Arizona Constitution allows legislation, in whole or in part, to be referred to voters by petition. So if Medicaid expansion were buried within a reconciliation bill, just the expansion could be referred.
Supporters would then have to initiate the litigation, arguing that it couldn’t be referred because it was part of an appropriations bill and appropriations aren’t generally referable. Opponents could then argue in the alternative: let our referendum go to a vote, or declare that the expansion was unconstitutionally enacted.
At that point, judges wouldn’t be being asked to overturn a legislative enactment but to thwart the right of voters to vote on it. Judges deny it, but such things matter.
Evil bastards! That's actually pretty brilliant. I have to admire that.
For all these reasons, House Speaker Andy Tobin has the right approach: refer the expansion to the voters this fall. Let’s have a clean fight on the issue, rather than a legal brawl over the constitutionality of its enactment.
There is, however, one unfortunate omission in Tobin’s current proposal. One of the benefits of going to the ballot is that it would permit the existing general fund liability for the previous Medicaid expansion, Proposition 204 in 2000, to be extinguished.
Only if that is actually part of the ballot measure referred to the voters. There is no reason why a complimentary measure which is compatible with Prop. 204 (2000) cannot be drafted. Whether it would have the votes in the legislature for referral to the ballot is another matter.
So we are left with two bad options: first, refer AHCCCS restoration as a refrendum to the voters in a costly special election this fall for a plebescite; or second, piss away taxpayer dollars on costly litigation in court, with a substantial risk of loss, and enrich the lawyers at the Goldwater Institute.
I have to agree with Robert Robb: "refer the expansion to the voters this fall. Let’s have a clean fight on the issue, rather than a legal brawl over the constitutionality of its enactment."
Longterm, we need a ballot measure to repeal Prop. 108 (1992), and to throw the radical Tea-Publicans out of office.