Idaho Supreme Court upholds Medicaid expansion

By Melissa Davlin, Idaho Reports

Updated 5:48 pm Feb. 5

The Idaho Supreme Court upheld Medicaid expansion in an opinion released Tuesday.

The opinion states Medicaid expansion does not delegate lawmaking authority to the federal government, as plaintiff Brent Regan argued in his November lawsuit.

Read the opinion, written by Chief Justice Roger Burdick, at this link.

Here are my initial takeaways:

-Justices didn’t buy the argument that the state is delegating its lawmaking authority to the federal government. “Idaho’s ongoing participation in Medicaid, even prior to expansion, requires a yearly appropriation of funds from the legislature,” the opinion says. Through that annual appropriation, the Idaho legislature will control the ongoing nature of Medicaid.  “Additionally, as the United States Supreme Court has said, ‘[t]hough Congress’ power to legislate under the spending power is broad, it does not include surprising participating States with post-acceptance or ‘retroactive’ conditions.’“

In other words, Congress can’t suddenly withdraw the 90/10 match for Medicaid funding. If that change happens, states will get plenty of notice.

-Almost everyone wanted a say. It’s normal to have a unanimous opinion; It’s also normal to have a dissenting opinion. This ruling has the majority opinion written by Chief Justice Roger Burdick, a concurring opinion by Justice John Stegner, an opinion that concurs in part and dissents in part by Justice Robyn Brody, and another concurring-dissenting opinion by Justice Greg Moeller. The only justice who didn’t weigh in was Justice Richard Bevan, who, incidentally, was also the only justice who didn’t ask questions during last week’s oral arguments.

Remember, too, how new this court is. Of the five justices, only Burdick has been there longer than two years; Three have been there less than a year. We may be getting a peek at how this dynamic is going to shake out.

-The dissents don’t agree with Regan; If anything, some of the arguments are more strongly worded. Both Moeller and Brody both say they would have rather the Supreme Court not heard Regan’s lawsuit, with Brody saying she would have sent the case to a lower court, and Moeller saying he would have dismissed it outright on its procedural weaknesses.

In his dissent, Moeller says Regan’s petition “suffers from serious justiciability defects,” going on to argue Regan is asking the court to weigh in on political and philosophical arguments instead of constitutional ones.

“This became readily apparent at oral argument, when counsel for Regan, in urging the Court to strike down the new law, argued that what the Supreme Court is really being asked to do is to decide whether this state will “act or be acted upon” when it comes to its relationship with the federal government,” Moeller writes. “Counsel (Bryan Smith) began his presentation with this phrase, and later repeated it when asked by the Chief Justice whether the state could simply “opt out” of Medicaid expansion if the federal government changed the current standards. Such arguments are largely ideological and dogmatic in nature—not legal—and demonstrate that the intent behind the petition is to have this Court redefine the proper role of federalism in Idaho. In sum, this Court is not really being asked to address an urgent constitutional issue created by the passage of section 56-267; rather, Regan is asking this Court to take sides in an ideological debate concerning political philosophy. “

-The court does cite a section of code as unconstitutional — just not the one Regan had been hoping for. Regan argued he had standing to sue as a “qualified elector” under Idaho Code section 34-1809(4). That statute “attempts to broaden this Court’s jurisdiction,” Burdick writes, creating a separation of powers issue.

Boy, that was fast. I was under the impression the Supreme Court wasn’t bound by any timeline regarding this decision, even if the Idaho Department of Health and Welfare had to meet a deadline for submitting Medicaid plan amendments and the Legislature had to fund it. We discussed this on last week’s Idaho Reports with Idaho Supreme Court Administrative Director Sara Thomas.

Still, the justices cited the deadlines and 2019 legislative session as a reason to take up the case, and rule quickly: “(W)e recognize the need for a determination of the constitutionality of section 56-267 during the 2019 legislative session given the fast-approaching 90-day window for the Department to submit any necessary plan amendments, and the Legislature’s need to consider funding for Medicaid expansion. Accordingly, due to the urgency of the alleged constitutional violation and the urgent need for an immediate determination, we will exercise our original jurisdiction over Regan’s petition.”

Well, I’ve been wrong before.


I’m still awaiting comment from the Idaho Freedom Foundation. In the meantime, here are reactions from other stakeholders. I’ll continue to update as I receive comment:

Rep. Fred Wood, chairman of the House Health and Welfare Committee: “I’m not an attorney, but I think it’s a good decision.” As to whether this would speed up some of the discussions surrounding Medicaid funding, he said he didn’t think the pending court decision had slowed down the Legislature.

Luke Mayville, Co-Founder of Reclaim Idaho: “I am ecstatic…. We know it was upheld in the court of public opinion by the voters, but it’s an extra boost for the cause of securing health care for 62,000 Idahoans by having the court uphold it as well.”

“With the court having ruled, there is no longer any excuse for inaction on the part of the Legislature. Their job is clear to fund Medicaid expansion and to allow it to be implemented without restrictions.”

Mayville also noted it was a “special joy” to see the ruling the day after the Medicaid expansion advocacy day at the statehouse, at which advocates met with lawmakers to encourage them to expand Medicaid without sideboards like work requirements. “It’s a special prize for them, for all the advocates who worked for this, to now have this sense of relief that knowing the constitutionality of Medicaid expansion is secure.”



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