The people's Prop 2 faces court challenge

COEUR d’ALENE — Voters overwhelmingly passed Proposition 2 last month, but its opponents aren’t going down without a fight.

Sixty percent of voters across the state approved of the measure, which would expand Medicaid in accordance with the Affordable Care Act. Locally, the measure barely earned majority support, with 50.4 percent of Kootenai County voters in favor and 49.6 percent opposed.

Brent Regan, who serves as chairman of the Kootenai County Republican Central Committee and as chairman of the Idaho Freedom Foundation, filed a lawsuit Nov. 21 to block implementation of the voter initiative.

“The lawsuit has nothing to do with the merits of Prop 2,” Regan said. “It simply asks the Supreme Court to determine if Proposition 2 comports with the Idaho Constitution. Proposition 2 is vague and poorly written. Idaho law provides that any elector can ask the Supreme Court to determine the constitutionality of an initiative. Through the initiative process, the citizens have the same ability as the legislature to create law, including the ability to create unconstitutional law, and to have the Supreme Court of Idaho potentially strike down that law.”

Regan’s lawsuit, filed by Idaho Falls attorney Bryan Smith, asks the Idaho Supreme Court to declare Prop 2 “unconstitutional and unenforceable,” and to require Secretary of State Lawerence Denney to keep the language of Prop 2 out of state code.

“By expressly bestowing the Department of Health and Welfare with power to ignore ‘any provision of law or federal waiver to the contrary,’ and by delegating authority to the Department of Health and Welfare to take ‘all actions necessary,’ Proposition 2 creates a sweeping and general delegation of legislative power without standards,” wrote Smith. It also gives DHW “uncontrolled, unrestricted and unguided discretionary power that exceeds constitutional limits,” and “impermissibly delegates lawmaking authority to the federal government to make future laws governing the issue.”

By signing up for Medicaid expansion on the federal government’s terms and unconstitutionally delegating state powers to the federal government, Regan’s lawsuit asserts that Prop 2 could later prove a financial problem to the state.

“If the federal government changes the percentage it pays from the stated 90 percent to the current 71 percent for Medicaid, Idaho could have no way to avoid the effects of the federal government’s lawmaking actions,” wrote Smith.

Sandpoint resident Luke Mayville founded Reclaim Idaho, which gathered the necessary signatures to put Prop 2 on the ballot in November. He disagrees with Regan’s contention that the measure is unconstitutional.

“Simply put, Prop 2 does not delegate lawmaking authority to the executive branch,” Mayville told The Press. “It’s true that Prop 2 delegates implementation authority to the Department of Health and Welfare. This is not authority to make the law, but simply to implement the law. This delegation of authority is perfectly legal and constitutionally sound. The language of our initiative regarding this matter is perfectly clear, and it is perfectly aligned with the language that 33 other states have used to enact Medicaid Expansion.”

In addition, Mayville said concerns about future costs are overblown.

“In the event that the federal government changes its share of funding for Medicaid Expansion, the Idaho Legislature has the option to repeal the program,” he said.

Prop 2 supporter Rep. Luke Malek agreed.

“The legislature often delegates detail to state agencies, particularly on issues that are technically complex like what has been enabled by Proposition 2. The authors of this suit know that, and it is disappointing to see the opportunism they are demonstrating.”

Malek also said that the state has dealt with federal funding problems before. “When the state ran out of money, it rolled back mental and dental Medicaid benefits in 2011,” he said.

Coeur d’Alene resident and Prop 2 proponent Rebecca Schroeder said Regan’s lawsuit is childish.

“Any civically engaged local has grown accustomed to hearing Brent Regan and the Idaho Freedom Foundation bark loudly,” she said. “Predictably, this lawsuit is Mr. Regan’s version of ‘throwing a fit’ that The Idaho Freedom Foundation’s negative propaganda campaign against Medicaid Expansion failed badly with voters.”

Malek concurred, calling the lawsuit “meritless grandstanding.” Mayville told the Idaho Falls Post Register in a Nov. 21 story that Regan’s lawsuit was “a political stunt.” Referring to what Mayville did during the campaign for Prop 2, Regan said, “This is a valid and necessary part of Idaho law, not a ‘political stunt.’ A political stunt would be if I was arguing my case while riding around the state in an ugly green RV.”

In accordance with state law, Idaho Attorney General Lawrence Wasden conducted a brief review of the voter initiative as it then existed in November 2017.

“The opinions expressed in this review are only those that may affect the legality of the initiative,” wrote Wasden.

He noted that the short time given to conduct the review required him to limit his review to “areas of concern” and did not “provide in-depth analysis of each issue that may present problems.” It included a review of two sections of Prop 2 that were later dropped. One addressed emergency enactment of the proposal and one served as a sunset clause to Medicaid expansion if cost sharing arrangements with the federal government changed.

Even if the courts find Prop 2 constitutional, it will be some time before changes to the state’s Medicaid program take effect. Wasden’s 2017 review said that if Prop 2 passed, the Idaho Medicaid program would develop an amendment to its state plan, which the federal Centers for Medicare and Medicaid Services would have to then evaluate and approve. Drafting a state plan amendment would take 60 to 90 days, and CMS would have up to 90 days to issue its decision, wrote Wasden. The state Medicaid program could not expand its benefits during that time frame. Following CMS’ decision, the state would then “begin the process of implementing the amendment,” he wrote.

Schroeder predicted that Regan’s lawsuit will fail.

“The constitutionality of Prop 2 is validated by the Attorney General’s opinion and the petition by Mr. Regan raises no valid legal challenge that contradicts that analysis,” Schroeder said. “I fully expect that the Idaho Supreme Court will side with Idaho voters and the State. Mr. Regan’s dispute is with the fundamental structure of government and how states share a tax burden with the federal government. His case is a reflection of personal perspective and not the will of the people of Idaho. The lawsuit takes on added futility when framed in the context that now 36 other states have adopted Medicaid Expansion, with nearly identical legal language.

“I look forward to hearing the opinion of the court.”

Regan said, “Contrary to what was reported, the Attorney General did not opine that Prop 2 was constitutional under Idaho’s Constitution.”

He added: “Proponents of Prop 2 should welcome a constitutional challenge. If upheld, Prop 2 would be deemed constitutional. If struck down, nobody wants unconstitutional law in place.”