All eyes will be on the Idaho Supreme Court on Jan. 29. That is the date set for oral arguments on the constitutional challenge to the Medicaid expansion measure overwhelmingly passed by Idaho voters in November.
The petitioner is Brent Regan who is challenging the measure in his role as an Idaho voter. He is also chair of the Idaho Freedom Foundation and his attorney is Idaho Falls conservative activist Bryan Smith.
On the opposite side defending the law is the Idaho Attorney General’s Office, joined by intervenors consisting of two mothers, a doctor and the Idaho Medical Association.
I have been twice before the Idaho Supreme Court and I strongly believe the key to winning is not the oral arguments, but the written legal briefs. On that basis, I think the opponents of Medicaid expansion have a steep hill to climb.
The first challenge is whether Regan is the proper party to bring the lawsuit. Courts generally require a plaintiff to have suffered particularized harm from the challenged statute, not just arguing their position as a taxpayer in general. Those defending expansion question Regan’s standing and he claims no individualized harm to him from Medicaid expansion. That is a significant potential weakness.
Second, Regan argues that he is entitled to bring the challenge under Idaho Code § 34-1809(4) which says “[a]ny elector of the state of Idaho may, at any time after the attorney general has issued a certificate of review, bring an action in the Supreme Court to determine the constitutionality of any initiative.”
The attorney general agrees that kind of challenge would have been appropriate before the issue was voted on, but point out that Regan filed his petition after the initiative had passed and become law, arguing it is no longer an initiative subject to challenge under this provision. If a majority of the justices agree with this interpretation, Regan will likely lose on this issue alone because it would deprive the Supreme Court of jurisdiction to hear the case. This may be the deciding issue.
If he survives these two hurdles, the substantive argument brought by Regan is a claim that the initiative is an impermissible delegation of legislative authority to the federal government:
Because Section 56-267 delegates future lawmaking to the federal government and its agencies, Section 56-257 violates Article Ill, Section 1 of Idaho’s Constitution. And just as this Court explained in Roden, the issue is not the effect that the federal government’s future lawmaking may or may not have on Section 56-267 because ”the question to be resolved is whether or not the Legislature of the State of Idaho [here, The People's initiative lawmaking power], contrary to the Idaho Constitution, Article 3, Section 1, unlawfully delegated its authority to the federal government and agency thereof.
The brief of the Attorney General’s Office gives this argument little credence: “The statute does not delegate authority to the federal government.” It points out that Idaho’s Medicaid program is state-driven in terms of coverage and that the initiative merely expanded that coverage, subject to the Idaho Legislature’s funding of the same.
The Attorney General relies on the case of State v. Kellogg, a 1977 Idaho Supreme Court case, that upheld the authority of the Idaho Board of Pharmacy and the FDA to determine which drugs require a prescription in Idaho, stating that an Idaho law was constitutional if the bounds of that authority were specified.
In contrast, Regan relies on Idaho Savings & Loan Ass’n v. Roden, a 1960 Idaho case, that struck a statute that required Idaho savings & loans to follow future federal requirements which might be inconsistent with the then-current Idaho law. The Idaho A.G.’s brief dismisses that case as decided before Kellogg and inapplicable to Medicaid expansion because the Idaho Legislature would need to approve future changes. If the court gets past the first two issues, this will be the deciding point and I expect heavy focus on this point at oral argument.
My overall take is that the Attorney General’s brief is more persuasive. Regan still can file a reply brief but it is difficult to win the case with that relatively short pleading.
If the briefs end up being decisive, then I expect Medicaid expansion to be upheld as constitutional. But, the ultimate decision really rests with the five members of the Idaho Supreme Court, including a brand new member from east Idaho. All eyes will be on the court Jan. 29 for clues to the final decision.