New filing in Medicaid lawsuit doubles down on constitutionality question

By Melissa Davlin, Idaho Reports

There is a new filing from Bryan Smith in the lawsuit on the constitutionality of Proposition 2. Read the reply brief to the state’s response here.

Smith, who represents plaintiff Brent Regan, says as written, the new statute that expands Medicaid gives authority to the federal government to change Idaho Code without the legislature’s input.

The gist of the argument: If the federal government changes the parameters of Medicaid, Idaho law could automatically — and, Smith argues, unconstitutionally — change without input from the legislature.

“The issue is not whether states may voluntarily choose to comply or not comply with
changes made by the federal government in Medicaid law,” Smith writes. “The issue is whether Idaho gets to voluntarily choose before or after the federal law already has become Idaho law.”

The Idaho Attorney General’s Office has called Regan’s lawsuit frivolous and without merit, saying it’s based purely on hypotheticals. The Idaho Supreme Court will hear oral arguments on Jan. 29th.

In the new filing, Smith doubles down on the argument that Medicaid expansion opens the door to allowing the federal government to change Idaho law, which he says is unconstitutional.

“(The state) does not dispute Petitioner’s claims that the federal government does
possess unilateral power to change federal law that will flow into the provisions of Section 56-267… Specifically, (the state) admits that the hypotheticals ‘may or may not happen’ and ‘may never come to pass.'” Smith writes. “The fact that they can happen and could come to pass establishes the federal government has unilateral power to change federal law that affects Idaho and Section 56-267 in particular.”

There are a handful of potential ways Congress could tweak laws surrounding Medicaid, such as the cost-sharing mechanisms between the federal government and the states, as well as eligibility.

But Medicaid expansion isn’t the only law on Idaho’s books that could be affected by potential federal government changes. Tax, commerce, foster care, and child support issues are just some of the laws on Idaho’s books that interface with federal code.

Smith didn’t return a request for comment on Wednesday, but in his filing, he focused solely on Medicaid expansion, not other areas of Idaho Code.

“Requiring the legislature to revisit Section 56-267 (Medicaid expansion) and adopt changes, if necessary, preserves Idaho lawmaking power,” Smith continues. “Moreover, it requires the legislature to exercise its lawmaking power proactively and deliberately, rather than reactively, and prevents turning our lawmakers into “zombie legislators” whose failure to act results in new Idaho law.”

On Wednesday, Rep. Bryan Zollinger told Idaho Reports said the potential exists for a ruling in Regan’s favor to open up “Pandora’s box” for other laws that require federal conformity.

Still, “it’s an easy fix,” said Zollinger, who practices law with Smith in Idaho Falls. The Legislature would merely have to adopt changes every year.

In the filing, Smith also addresses the timing of the lawsuit, saying Regan couldn’t have sued before the initiative was signed into law because of a previous ruling, Noh v. Cenarrusa, that says the court can’t rule on the constitutionality of propositions until after voters pass them.  Smith also says Regan has standing to sue as a “qualified elector” — which means anyone who is legally qualified to vote.

The Idaho statute on initiatives specifically allows for this, saying “Any qualified elector of the state of Idaho may, at any time after the attorney general has issued a certificate of review, bring an action in the supreme court to determine the constitutionality of any initiative.” 

“Waiting until the voters passed the initiative allowed the lawmaking process to proceed without unconstitutional judicial interference, while at the same time honoring the legislature’s intent to allow (a) qualified elector to challenge the constitutionality of the initiative, but only after its passage,” Smith wrote.





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