Battle against Unconstitutional Brewer Medicaid Expansion to Go to Court Today

| December 13 2013

Battle Between Ariz. Governor And Republican Legislators Over Obamacare Medicaid Expansion Moves To Courtroom This Week

The battle between Arizona Governor Jan Brewer and thirty-six Republican state legislators moves to the courtroom Friday, after the unconstitutional passage of an Obamacare Medicaid expansion in the state.

In a lawsuit filed by the Goldwater Institute, the legislators argue that the tactics used to fund the Medicaid expansion violated a state constitutional protection (Prop 108) enacted by Arizona voters requiring a two-thirds majority of legislators whenever levying a tax increase. Governor Brewer and proponents of Medicaid expansion failed to garner this level of support at the time of passage, after legislators expressed concern over the risks of funding the expansion. Previously, actual costs of Medicaid expansion in the state exceeded projections by nearly 400% each year.

Last summer, Governor Brewer called state lawmakers into a surprise special session, in an effort to avoid constitutional requirements to pass expansion by surrendering the Legislature’s taxing power to the unelected bureaucrat who oversees the state Medicaid program, dubbing the tax an “assessment.”

Governor Brewer’s attorneys argue that the legislators do not have standing to sue, because the “assessment” funding the expansion is levied on health care providers, not the legislators or taxpayers themselves. A judge will consider this question Friday, ultimately determining whether or not the legislators were disenfranchised when their votes were not counted based on the manner in which the expansion was passed.

According to attorneys at the Goldwater Institute, calling a tax an assessment doesn’t mean it ceases to be a tax.

“This is exactly the sort of scenario that state taxpayer protections are designed to prevent,” said Kurt Altman, the Goldwater Institute attorney leading the case. “Legislators are beholden to their constituents, but bureaucrats have no such accountability.”

The Medicaid expansion marks the first time that Arizona lawmakers have directly raised taxes since Prop 108’s passage in 1992, an indication of the constitutional protection’s strength when followed.

Arizona is not the only state with taxpayer protections of this kind on the books, meaning that the outcome of this lawsuit could have implications for the sanctity of constitutional protections elsewhere.