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Idaho Supreme Court upholds Medicaid expansion initiative, rejects legal challenge

February 6, 2019

BOISE — The Idaho Supreme Court has rejected the Idaho Freedom Foundation’s claim that the voter-passed Medicaid expansion initiative is unconstitutional, instead finding the foundation’s arguments on that point “without merit.”

The opinion was written by Chief Justice Roger Burdick. Two justices both concurred and dissented; both Justices Robyn Brody and Greg Moeller contended that the case should have been dismissed on procedural grounds, before even considering the constitutionality argument.

Justice John Stegner wrote a special concurrence disagreeing with Brody. “I opt to address the question head-on,” he wrote. “The statute is constitutional. Rather than make this pronouncement at some point in the distant future, we have the jurisdiction and the ‘urgent need’ to make it today. The electorate and the other branches of government need and deserve an answer. We have given them one.”

The court ruling clears the way for Idaho to implement the initiative, which won support from 60.6 percent of Idaho voters in November. It expands Idaho’s now-limited Medicaid program to include people under age 65 whose income falls below 133 percent of the federal poverty level. Without that, an estimated 60,000 Idahoans fall into a coverage gap, making too much to qualify for the state’s current Medicaid program — for which adults must make no more than roughly 21 percent of the poverty level — but not enough to qualify for subsidized health coverage through the state insurance exchange.

The suit was filed with Freedom Foundation board Chairman Brent Regan as the lead plaintiff; he sued Idaho Secretary of State Lawerence Denney, contending that the initiative unconstitutionally delegated state lawmaking authority to the federal government and the state Department of Health & Welfare, in part because it referenced a federal law. Attorney Bryan Smith wrote in arguments submitted to the court that the initiative would turn Idaho lawmakers into “zombie legislators” with no say over what the state does. But Burdick wrote that numerous Idaho laws reference federal laws, and that doesn’t make them unconstitutional.

In the 26-page ruling, Burdick repeatedly called the Freedom Foundation’s arguments “unpersuasive” and “without merit.” But he didn’t award attorney fees, leaving each side to bear its own costs.

That’s because the court ruling also found a specific state law that allows such challenges directly to the Idaho Supreme Court to be unconstitutional. That’s the same position the court took in a 2003 order, though that order didn’t set a precedent. Burdick wrote that because the Freedom Foundation relied on that unconstitutional law to bring the lawsuit, their filing wasn’t “frivolous,” so attorney fees wouldn’t be awarded.

Burdick wrote, “It is unclear why Regan contends the Medicaid expansion statute is unconstitutional but does not challenge the existing Medicaid statute, when both reference the Social Security Act. If we were to accept Regan’s argument that any reference to a federal statute delegates lawmaking authority to the federal government, then many of Idaho’s statutes would be unconstitutional, and in fact, the option of any cooperative federal-state program would be curtailed.”

The opinion includes a list of examples from existing Idaho laws that reference federal statutes, from education laws to the Idaho Public Records Act.

Burdick also wrote that he found the argument “unpersuasive” that the initiative improperly delegated lawmaking authority to the state Department of Health & Welfare. The initiative “does not leave the Medicaid eligibility determination to the Department; rather, the statute states the three criteria that must be present in order for an individual to qualify for Medicaid after the expansion,” he wrote. Those are being under age 65, meeting the new income standard, and not otherwise qualifying for government assistance with health insurance.

Moeller wrote, “Simply put, I do not believe that Regan’s petition presents an urgent constitutional issue sufficient to overcome its jurisdictional deficiencies.”

“What this case actually presents to the court is not an urgent constitutional issue, but a political question,” he wrote. The comments Smith made repeatedly to the justices during oral arguments about the case revolving around whether the state will “act or be acted upon” concern its relationship with the federal government, Moeller wrote. “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. … Regan is asking this court to take sides in an ideological debate concerning political philosophy.”

Smith said Tuesday evening that he was still reviewing the ruling, but he found solace in the fact that the court said Idaho couldn’t be bound by future changes in federal law just because of the initiative. He said he believed that would prevent the state Department of Health & Welfare from making future changes in Medicaid without legislative approval. “Had we not brought the lawsuit, they would do it,” he said.

Idaho Attorney General Lawrence Wasden released a statement Tuesday night on the decision. “I would like to thank the Supreme Court for its thorough and expeditious review of this case.” he said. “From the beginning, we felt the state had a strong argument to make. My office was honored to defend the will of Idaho’s citizens.”

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