Court upholds Kasich’s expansion of Medicaid

No justice votes in favor of challengers

12/21/2013

AP

COLUMBUS — The Ohio Supreme Court on Friday removed a legal cloud over the state’s expansion of Medicaid to some 275,000 mostly working adults without dependent children beginning Jan. 1.

By a vote of 4-3, it rejected a challenge to Gov. John Kasich’s use of a budgetary panel to make the expansion happen after his fellow Republicans in the General Assembly balked.

The court found that several conservative lawmakers and two Right to Life organizations in Cincinnati and Cleveland failed to show that the Ohio Controlling Board acted beyond its authority when it voted 5-2 in October to draw down nearly $2.6 billion in federal funds to pay for the expansion over the next year and a half.

“Although this case arises in the context of a complex social and political debate, our task is limited,” Chief Justice Maureen O’Connor wrote for the majority. “Quite simply, a single question of law is presented to us: Did the Ohio Controlling Board violate [state law] by approving the Ohio Department of Medicaid’s request for increasing appropriation authority?”

The majority’s answer to that question was no.

The vote was 4-3 but, in the end, opponents of the Medicaid expansion maneuver didn’t get a single justice’s vote. The three dissenters said they would have dismissed the challenge outright.

The plaintiffs had argued that the General Assembly had made its intent known when it stripped Mr. Kasich’s proposed expansion from the state budget and then inserted language to specifically prohibit expansion by other means.

But Mr. Kasich exercised his line-item veto power to strike the prohibition language from the final budget before signing it into law. Therefore, the court found, there was no legislative intent.

“Under our Constitution, an act is not effective and in force, that is, it does not become law, until it is signed into law, or permitted to become law, by the governor,” Chief Justice O’Connor wrote. “Any other conclusion would create a constitutional crisis.”

She noted that the General Assembly always has the right to try to overturn a governor’s veto and said lawmakers cannot circumvent that by asking a court to do it for them. Republicans have 60 members in the House, exactly the super-majority they would need to override.

But some Republicans have joined Mr. Kasich in supporting the Medicaid expansion, and Democrats are unlikely to join the GOP majority in an override attempt.

“Obviously, we’re pleased with the court’s ruling and glad that Ohio can now move forward,” Kasich spokesman Rob Nichols said.

Additional litigation is unlikely, said Maurice Thompson, director of the 1851 Center for Constitutional Law, which brought the case on behalf of the lawmakers and two regional right-to-life groups.

“At bottom, I do think the court’s decision, characterizing the governor’s veto act as an act of the General Assembly … is irreconcilable with reality, and that we are the victims of political winds, rather than the law itself,” he said.

Chief Justice O’Connor was joined in the majority by Justices Paul Pfeifer and William O’Neill. Justice Judith Lanzinger agreed with the outcome only, but did not write an opinion as to why.

Justices Terrence O’Donnell dissented, saying the court shouldn’t be meddling in what amounts to a legislative dispute.

“The General Assembly has both the incentive to protect its prerogatives and the institutional mechanisms to do so,” Justice O’Donnell wrote. “The case involves an impermissible judicial foray into the province of the legislature and raises a political question that is not justiciable and which we ought not to answer.”

Justices Sharon Kennedy and Judith French separately dissented but without issuing opinions as to why.

Mr. Thompson characterized the decision as “a fractured 3-1-1-2.”

A statement issued jointly by Col Owens and Cathy Levine, co-chairmen of Ohio Consumers for Health Coverage, said the decision brings “the gift of peace of mind” for those newly eligible.

“The new year will bring unprecedented access to health insurance coverage for Ohioans who have not been able to afford health insurance or have been denied coverage due to pre-existing conditions,” they said. “Ohio will be healthier in 2014.”

Mr. Kasich has not been a fan of President Obama’s signature Affordable Care Act, but he did decide that expanding Medicaid makes sense. The expansion allows those earning up to 38 percent over the federal poverty level, roughly $32,000 a year for a family of four, to join the rolls. The federal government would pick up all of the additional cost for the first three years, then gradually reduce its reimbursement rate to 90 percent after that. This is expected to bring in an estimated $13 billion to the state over the next seven years.

Contact Jim Provance at:

jprovance@theblade.com

or 614-221-0496.