Our Tea-Publican state legislators were in court on Valentine’s day trying to reverse Gov. Jan Brewer’s Medicaid (AHCCCS) expansion plan that benefits over 400,000 Arizonans who now have access to medical care. They are represented by the “Kochtopus” Death Star, the Goldwater Institute.
It does not appear that things went well for our lawless Tea-Publican legislators. The Arizona Capitol Times (subscription required) reports, Court of Appeals hears challenge to Medicaid expansion affecting hundreds of thousands:
The Goldwater Institute, a non-profit that advocates for conservative and libertarian causes in the courtroom and Legislature, is challenging the expansion, arguing that a levy imposed on hospitals is a tax increase and required two-thirds approval of the Legislature, which it did not receive.
At stake is Medicaid coverage for up to 400,000 childless adults in Arizona.
Brewer, a GOP governor who pushed the legislation through against the opposition of the majority of Republican lawmakers, attended the oral arguments.
“I don’t regret what I did in regards to this,” Brewer said before the hearing. “It saved lives, it insured more people, it brought money into the state, it kept rural hospitals from being closed down and today there are thousands of people who are very, very grateful.”
Goldwater is representing 36 lawmakers who voted against the 2013 legislation, which finances the state’s share of the Medicaid expansion program with the fee on hospitals. It took effect in January 2014.
The director of the Arizona Healthcare Cost Containment System, or AHCCCS, sets the fee amount.
AHCCCS argued that the levy met an exception to the constitutional provision requiring the two-thirds approval. The super-majority requirement was passed by voters in 1992 as Proposition 108.
Goldwater Institute attorney Christina Sandefur tried to convince a three-judge panel of the Arizona Court of Appeals to overturn a lower-court ruling that found the levy was an assessment not subject to the super-majority vote.
The panel of judges stopped Sandefur in her tracks towards the end of her allotted 20 minutes to sharply question her.
Howard Fischer reports the exchange:
Sandefur acknowledged the Legislature did not set the amount of the levy and that the 2013 law specifically authorized the AHCCCS director to raise money.
But she told the appellate judges that voters adopted the requirement for a two-thirds vote specifically “to put limits on the ability of government to raise revenue.”
“This is very, very broad proposition that the voters passed here,” Sandefur argued. “To just say that the Legislature can hand over that kind of power by a bare majority would completely undermine the purpose of Prop. 108 itself.”
She also acknowledged the constitutional exception from the supermajority margin for assessments imposed by agency directors.
But Sandefur told the judges that even if the levy is an assessment — and even if Betlach gets to decide the amount — it took an act of the Legislature to authorize him to levy it.
Judge Paul McMurdie got nods of agreement from his colleagues as he questioned the logic of Sandefur’s argument that the exception AHCCCS is relying on doesn’t apply.
“You wouldn’t need the exception if they did it by a supermajority,” McMurdie said. “That is the most circular argument I think I’ve ever heard.”
Sandefur said the Legislature is trying to get around Prop. 108 by giving the AHCCCS director the power to set the fees imposed on hospitals.
“This is a very, very broad proposition that the voters passed here,” Sandefur said. “To just say that the Legislature can hand over that kind of power by a bare majority would completely undermine the purpose of Prop. 108 itself.”
Howard Fisher again:
Judge Patricia Norris said if the court buys the Goldwater Institute argument, it makes the exception in Prop. 108 for assessments meaningless.
Norris said there’s another flaw in Sandefur’s argument.
She said taxes are generally defined as being for a general public benefit, and that the plan to get more people covered by Medicaid “has some general public purpose.”
But Norris said this levy is different.
“It’s designed to specifically deal with a problem that the hospitals are facing,” the judge said.
“This is designed to defray the cost of doing business with an indigent population.”
Sandefur did not see it that way.
“The purpose is to take care of Arizona’s poor by providing them with health care,” she told the court. “The ultimate purpose of this is a public purpose.”
That logic did not sway Jones.
“Doesn’t your analysis leave us where everything is a tax?” he asked.
Exactly! That’s what makes this a circular argument that renders the exception in Prop. 108 meaningless.
Monday’s hearing follows a 2015 ruling by Maricopa County Superior Court Judge Douglas Gerlach that levy is an assessment not subject to the supermajority requirement. Whichever side loses here is expected to seek review by the Arizona Supreme Court.
The appellate court did not indicate when it will rule.
Rest assured that the “Kochtopus” Death Star, the Goldwater Institute, will appeal all the way to the Arizona Supreme Court where their former boss, Clint Bolick, is now on the Court. Bolick should be required to recuse himself from this case.