Republican Legislators Believe Governor’s action to expand Medicaid violates the Alaska Constitution; Alaska Legislature Takes Governor to Court
By MARY KAUFFMAN
August 19 2015
“Today's Legislative Council action is not about the merits of whether or not to accept Medicaid expansion, it is about the process the governor chose to use: expanding to include optional groups falls under the purview of the Legislature,” said House Speaker Mike Chenault (R-Kenai). “This is about protecting our role and the Alaska Constitution.”
This decision was made following a closed door, executive session and was made without the support of the Alaska Independent Democratic Coalition or the input of the people of Alaska, according to Representative Andy Josephson (D-Anchorage). Quoting a news release from Josephson, "On Tuesday, a small handful of Republican lawmakers voted to authorize a lawsuit seeking to block Alaska Governor Bill Walker’s decision to use his executive powers to expand Medicaid eligibility in Alaska."
Governor Walker during the Medicaid Expansion announcement in July 2015. Seated behind the Governor is Alaska Department of Health and Social Services Commissioner Valerie Davidson
Governor Walker responded to the news on FaceBook writing, "I am disappointed in the Legislative Council's decision to bring litigation that would take away the right for Alaskans to receive 100% federally funded healthcare. Our state is currently facing a 3.5 billion dollar deficit, and this is the time to be making responsible fiscal decisions. Medicaid expansion will save Alaskan lives and will save our state money. I will never lose sight of who I represent because Alaskans deserve nothing less. Medicaid expansion is the right thing to do and I stand firm by my decision."
On July 16, Governor Walker announced he would expand Medicaid unilaterally – without the approval of the Legislature.
According to the Alaska Legislative Council, many lawmakers, while open to expanding Medicaid with reforms, believe it’s important that any action comply with the legal process established in the state constitution.
“The framers of Alaska’s Constitution wisely gave the Legislature sole authority to appropriate state funds because they believed a healthy separation of powers was vital for our democracy,” said Senate President Kevin Meyer (R-Anchorage). “If we don’t stand up for our constitutional duties as a co-equal branch of government, then we set a dangerous precedent where governors believe they can spend money and change the law without legislative approval.”
“This is a major policy decision for Alaska, with serious fiscal consequences,” said House Majority Leader Charisse Millett (R-Anchorage). “It’s very important that the decision is made in a manner consistent with Alaska’s Constitution. This action is not about Medicaid expansion – it’s about preserving the integrity of Alaska’s Constitution.”
Quoting a news release from the Alaska House Majority (Republicans) and Senate Majority (Republicans), in NFIB v Sibelius, the U.S. Supreme Court made it clear that Medicaid Expansion is “optional” and not mandatory. State law makes it equally clear that any new groups must be approved by the Alaska Legislature.
“The U.S. Supreme Court has the final say on Medicaid expansion,” said Senate Majority Leader John Coghill (R-North Pole). “The Court declared that the additional group of able-bodied, childless adults is an optional group and that the states have a genuine choice as to whether to expand Medicaid to include that population. That being the case, state statute requires legislative approval for any new additional groups. The Governor may not expand unilaterally.”
The Alaska House and Senate Majorities say state and national legal experts agree that the governor’s unilateral action disregards both state law and the Supreme Court’s 2012 ruling in NFIB v. Sebelius.
“The governor’s attempt to assert unilateral authority to opt-in to Medicaid expansion rests on a plain misreading of the Supreme Court’s 2012 decision in NFIB v Sibelius, the U.S. Supreme Court, which expressly held that states have a genuine choice whether to accept the offer to participate in Medicaid expansion,” said attorney Erin Murphy of the Washington D.C. based constitutional law firm Bancroft, LLC. “The federal government itself has recognized that NFIB made participation in Medicaid expansion an option, not a requirement, as have the many states that have declined to participate since NFIB was decided.”
“By trying to opt-in to Medicaid expansion without the legislative approval Alaska law requires for optional coverage groups, the governor is asserting a power that the Alaska Constitution simply has not given him,” said attorney Tim McKeever of the Anchorage based law firm of Holmes Weedle and Barcott, which has been retained by the Legislature as local counsel.
“My bill never received a hearing and I believe the Republican leadership never seriously considered the bill submitted by the Governor,” said Rep. Josephson (D-Anchorage). “At nearly every turn during this past legislative session, the Republican controlled leadership ignored the wishes of the people and a majority of lawmakers by not properly considering and voting on the Medicaid expansion issue.”
In late July, Rep. Josephson asked the non-partisan Division of Legal and Research Services for a legal opinion about the legality of Governor Walker’s decision to accept millions of dollars for Medicaid expansion after the Republican controlled leadership failed to act during the first session of the 29th Alaska Legislature. Josephson says the opinion clearly shows that Governor Walker has sufficient authority to accept federal funding for Medicaid expansion. The legal opinion also notes that legislative intent language inserted into the FY 2016 budget seeking to stop Medicaid expansion is likely unenforceable. That language was inserted into the budget over the objections of the members of the Alaska Independent Democratic Coalition who tried repeatedly to push the Medicaid expansion issue to a vote on the House floor. Those efforts were squashed by the Republican controlled leadership in the House according to Josephson.
“Multiple legal opinions show the Governor has the authority to expand Medicaid and multiple polls show it has widespread public support,” said Rep. Josephson. “Republican controlled leadership used binding caucus rules to prevent expansion authorization in the budget and they even went so far as to use seldom used parliamentary maneuvers to stifle debate about the expansion concept during the amendment process for the budget. I am a strong believer in our independent court system and I believe that it will find that Governor Walker does have the authority to unilaterally move forward with Medicaid expansion.”
Rep. Josephson has long been a supporter Medicaid expansion and authored legislation allowing the Walker Administration to accept federal funds to provide vital healthcare to an estimated 40,000 Alaskans. Rep. Josephson continues to support expanding Medicaid eligibility in Alaska and is confident the courts will allow expansion to go forward beginning next month.
Senate Minority Leader Berta Gardner (D-Anchorage) responded to the announcement by Republican legislative leadership that it intends to use the courts in its continued attempts to block Medicaid expansion in Alaska.
“I am disappointed that one group of legislators will apparently spare no expense or effort to deny health care to so many Alaskan families," said Gardner.
Gardner said, “The more-than-ample Medicaid hearings and two independent studies have confirmed that Medicaid expansion will bring new money and jobs into our state at a crucial time, and at the same time will provide thousands of Alaskans with access to healthcare. This tells me the opposition is political and ideological, and that’s no way to make good policy for our state".
“Politics is for campaign seasons," said Gardner, "but once that dust is settled it’s time to act like leaders and policy makers – it’s time to put good ideas ahead of ideology and act on behalf of every Alaskan. Alaskans want Medicaid expansion, and we know it’s the right thing, and the smart thing, to do. Elected officials wasting time and money on lawsuits to fight against the wishes and needs of Alaskans makes no sense to me, and I’m confident Alaskans will see it for the political grandstanding it is.”
Republican Representatives Lynn Gattis, Dan Saddler, Lance Pruitt and Tammie Wilson also voiced strong support for the Republican House Leadership and the actions taken by the Legislative Council to pursue a legal challenge defending the Legislature’s constitutional authority.
“In the interests of preserving the constitutional balance of power, it is essential that the governor’s unilateral action is revealed for exactly what it is – unconstitutional,” Gattis (R-Wasilla) said. “It’s a power grab that, if unchecked, would have serious and far-reaching consequences for Alaska.”
“In order to continue to keep our state healthy we must abide by our Constitution,” Wilson (R-North Pole) said.
Alaska Republican Party Chairman Peter S. Goldberg also praised the Alaska Legislature’s Legislative Council for taking legal action against the Governor's unilateral expansion of Medicaid.
"Legislators and the governor take an oath to uphold the Constitutions of Alaska and the United States,” Goldberg said. “The law of Alaska does not permit the governor to expand Medicaid to further categories of individuals. That is a legislative power. The legislative process keeps in check what would become imperial powers of the governor. It’s time to take this matter of process to the third branch of government -- the judiciary -- to be resolved.”
House Democrats were disappointed with the Legislative Council's decision. Rep. Sam Kito III (D-Juneau) said, “I am very disappointed with the Legislative Council vote to hire outside council to pursue a lawsuit against our Governor, challenging his action in accepting Medicaid expansion. The Governor’s Attorney General, and the Legislative legal department have both prepared legal opinions indicating that the Governor, under existing state law and our Constitution, has the ability to accept Medicaid expansion under the Affordable Care Act."
“Majority leaders miss and ignore an important point in this decision to hire even more lawyers, this time to sue the governor," said Rep. Andy Josephson (D-Anchorage). "They’re wrong to say the expansion population is an optional category. It’s clear to me the expansion population is mandatory under federal law. The US Supreme Court only made expansion n choice of individual states because of spending powers issues and states rights issues. But if the state decides to expand, the population is part of the mandatory requirements of federal law.”
“I represent hard-working Alaskans working two and three jobs to make ends meet and even then healthcare is often out of reach. We need a healthy workforce if we want a thriving economy. The Republicans’ vote [Tuesday] harms our economy during an already-uncertain time,” said Rep. Geran Tarr (D-Anchorage).
Edited by Mary Kauffman, SitNews
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