Opinions

Alaska majority leaders pay dearly for lawyers to say what they want to hear

"The Medicaid provisions of the Affordable Care Act, in contrast, require States to expand their Medicaid programs by 2014 to cover all individuals under the age of 65 with incomes below 133 percent of the federal poverty line." (National Federation of Independent Business v. Sebelius, 2012; opinion of U.S. Supreme Court Chief Justice John Roberts).

If you've ever believed that lawyers are in overabundance in the world, you might find this piece unsettling. Members of the Alaska Legislature have attorneys dedicated to the legislative branch. When asked whether Gov. Bill Walker could unilaterally expand Medicaid, those attorneys concluded he can. Indeed, at least two of the Legislature's own staff attorneys have reached this conclusion.

Meanwhile, the people of Alaska also have their own attorneys: the Department of Law, more commonly called the Attorney General's Office. These are the scores of lawyers working on behalf of the state and its citizens. These attorneys have also concluded Walker can lawfully and unilaterally expand Medicaid.

Notwithstanding the surfeit of legal opinions already pronounced, a committee of the Legislature, the Legislative Council, has hired two additional law firms, and is prepared and committed to pay them a total of $450,000 to challenge Walker's action. Arguably, as a legislator, these are my lawyers, too — though I'm sorry they were retained. An op-ed published recently by Alaska Dispatch News inferred all legislators supported the retention of a third set of counsel chiming in on the question of the legality of the governor's action. Anecdotally, it is very likely more than 50 percent of the legislators actually support the governor's announcement on Medicaid expansion. But, majority members who support expansion and the governor's position have insufficient power in their respective caucuses to stop a challenge to the governor's action. The result: more lawyers.

The substantive legal dispute

Chief Justice Roberts's quoted language, above, makes it plain and unmistakable: once a state opts to expand Medicaid under the Affordable Care Act, the expansion population becomes a mandatory group that enjoys coverage. Full stop. Indeed, there is a legal argument that, upon being sworn into office on Dec. 1, 2014, Walker was obligated to expand Medicaid. (Naturally, that duty would have fallen on Walker's predecessor, also).

What is the key to understanding this dispute? There are two uses of the word "option" (or optional), being discussed. If someone were to ask, "Does the state of Alaska have the 'option' of selecting Medicaid expansion?," as that word is used in the common vernacular, I would answer "yes."

Yes, we have that option because the Supreme Court held the ACA was too coercive of states and overly aggressive in its use of constitutional spending authority.

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If the same person said, "If we select Medicaid expansion, and waive our right to assert the coercion and spending authority arguments, is expansion a mandatory benefit or an optional benefit under Medicaid?," I would answer it is a mandatory benefit and not an optional benefit. Again, two uses of the word "option" are being discussed. Remember: this isn't just my view, it is the view of the chief "decider," Justice Roberts writing for the majority of the U.S. Supreme Court. This is the rub of the substantive legal dispute.

Separation of powers

I do "get" the Legislature's protective posture relative to the power of appropriation. Instinctively and viscerally, I get that. It's a survival response, akin to the fight-or-flight mechanism teachers told us about. I do see a place where a high court can "draw the line," however, while finding that the governor is authorized to accept expansion dollars: If the governor is authorized to receive additional federal dollars through the Executive Budget Act, and that act is constitutional, his position should prevail.

As the chair of the Legislative Budget and Audit Committee understood, the Executive Budget Act invites the very action Walker took. No effort was made by the majority to amend this existing statutory authority. Instead, just as the majority blamed Walker for failing to introduce a stand-alone Medicaid expansion bill (his original reference to expansion dollars was in the appropriations budget, not in a separate bill), so too has the majority relied on appropriations intent language to block receipt of federal monies. Its "negative language" claiming to prohibit receipt of federal expansion dollars violates an Alaska Supreme Court decision that concludes appropriations intent language "… must not enact law or amend existing law."

Additionally, Senate Bill 26, Section 22 (the fiscal year 2016 capital appropriations bill) and House Bill 72, Section 24 (the fical year 2016 operating appropriations bill), also arguably invite receipt of excess federal monies. Still other arguments can be made that Alaska's Medicaid plan is entirely in the purview of the commissioner of the Department of Health and Social Services, and subject to change by her, if consistent with federal law.

The Legislative Council could have filed its lawsuit as early as July 17. It chose to wait until the eve of the state's receipt of federal expansion dollars, requiring expedited practice to try to block the governor's widely supported expansion plan. Some might even argue the council appears to be spending money to stop the state from saving state money through expansion.

The governor does not stand alone: some 60 percent of Alaskans support his position. On no fewer than six occasions, during the 1990s alone, former governors used the Executive Budget Act to receive federal funds not otherwise expressly authorized. And, Kentucky and West Virginia's governors appear to have expanded Medicaid unilaterally, too. In context, I applaud the governor's position wholeheartedly.

Rep. Andy Josephson, a Democrat, has served in the state House of Representatives since 2013.

The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary(at)alaskadispatch.com

Andy Josephson

Rep. Andy Josephson was elected to the Alaska State House of Representatives in 2012 and represents residents in South Midtown, Taku-Campbell and East Sand Lake.

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