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State Supreme Court should protect division of powers, toss Medicaid expansion

State Supreme Court should protect division of powers, toss Medicaid expansion

Wayne Hoffman
November 24, 2018
Wayne Hoffman
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November 24, 2018

For many years, scientists have debated why some critters that live in caves and at great ocean depths have eyes yet are blind. Is the sightlessness of the cavefish—perhaps the most studied of darkness-bound species—the result of generations left in blackness, negating the need for visual inspection of its surroundings? Or because as time went on, the fish with greater visual acuity made their way toward brighter waters, leaving behind their sightless compatriots? The only thing that is certain: This transformation did not occur overnight and continues in nature today.

The same evolution applies to our federal government. In it, we’ve had a well-formed republic with three distinct branches of government, each with unique roles and responsibilities.

The exclusive power of the legislative branch to write laws has been slowly and subtly transferred to unelected and unaccountable bureaucrats in the executive branch.

In September, U.S. Sen Ben Sasse, R-Nebraska, highlighted this mutation in an exchange with then-Supreme Court nominee Brett Kavanaugh:

“Over the course of the last century, but especially since the 1930s and then ramping up since the 1960s, a whole lot of the responsibility in [the legislative branch] has been kicked to a bunch of alphabet soup bureaucracies,” Sasse complained. Among other problems Sasse noted, this “delegation of legislative authority,” as it is called, has helped politicians avoid accountability, given sweeping authority to government officials, and pushed substantive policy matters to the courts.

This phenomenon also plagues state governments. Proposition 2, the Obamacare Medicaid expansion that Idaho voters approved earlier this month, has the same fatal delegation-of-legislative-authority flaw. It’s fatal because our state constitution expressly forbids the delegation of legislative authority that troubles Sasse and me. This is the crux of the lawsuit the Idaho Freedom Foundation filed last week against Proposition 2.

The Idaho Statesman editorial board puzzles what possible grounds there would be to sue over Medicaid expansion “given that there are no civil rights issues involved.” Comments like those from people who should know better are why the facepalm emoji on smartphones was invented.

Any law that violates the state constitution can be challenged. A law that takes in multiple topics in violation of the state constitution’s “single subject” requirement could be struck down. So could laws that violate the requirement that a law be written in plain English. It doesn’t matter whether such a law was passed by the Legislature or ratified at the ballot box.

Under Prop 2, all the details of how the Medicaid expansion is to be implemented are delegated to the state Department of Health and Welfare and to the federal Department of Health and Human Services. Additionally, the voter-approved Medicaid expansion law gives Congress the ability to treat Idaho’s statutes like a Mad Libs booklet, filling in the blanks voters left, with unintended and unimaged meanings and applications. So while the Idaho Statesman says not to worry because civil rights aren’t on the line, I worry about the legislative branch (and by extension, the voice of Idaho voters) becoming a vestigial organ and a supplicant to state and federal bureaucrats. Such endangers every inalienable right.

Mind you, though this argument against Prop 2 might seem new to some voters who supported the ballot initiative, it is not new to the media. I warned of this constitutional problem in a September commentary. Almost no media outlets chose to report on it, except those newspapers that run my column. For whatever reason, some in the press figured We the People didn’t need to be troubled with details.

While scientists ponder what happened over centuries or millennia to make the cavefish go blind, political scientists won’t have to search far to see where our government went off the rails. That is, unless the Idaho state Supreme Court recognizes Prop 2 for what it is: a gross misallocation of power from one branch of government to another that must be struck down.

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