Back in March, the Arizona Court of Appeals affirmed the Maricopa County Superior Court decision upholding former governor Jan Brewer’s Medicaid (AHCCCS) expansion plan in 2013. AZ Court of Appeals upholds Medicaid (AHCCCS) expansion plan.

The “Kochtopus” Death Star, the Goldwater Institute, naturally appealed to the Arizona Supreme Court.


Supreme Court Justice Clint Bolick, who was vice president for litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation at the time this lawsuit was filed, should be required to recuse himself from participating in this appeal under the court’s rules of ethics.

The parties are now filing their pleadings with the Arizona Supreme Court. Ducey administration argues to keep hospital levy paying for AHCCCS care:

The Ducey administration is asking the Arizona Supreme Court to preserve the levy that pays for an expanded Medicaid program — assuming that expansion isn’t undermined by Congress killing the program.

In legal papers filed Friday, attorney Doug Northup wants the justices to reject arguments by Republican lawmakers that money being paid by hospitals to the Arizona Health Care Cost Containment System is a tax. Instead, he contends, it is simply an “assessment” on hospitals.

That difference is more than wordplay.

The Arizona Constitution says taxes can be enacted only with a two-thirds vote of both the House and Senate. The 2013 legislation to both restore Medicaid coverage to some who had been cut, as well as to expand who is eligible, did not get that margin.

So unless the high court agrees with the governor and his AHCCCS director, the $265 million a year now being collected goes away — as does health care coverage for about 400,000 Arizonans.

Northup is not the only one asking the Supreme Court to spurn the Goldwater Institute’s bid to classify the levy as a tax. The Arizona Center for Law in the Public Interest, which represents some people who would lose coverage if the levy goes away, also weighed in Friday with its own defense of the law.

The filings are in response to a last-gasp bid by GOP opponents of the levy to quash it. Both a trial judge and the state Court of Appeals previously rejected their argument that it is a tax.

But attorney Christina Sandefur of the Goldwater Institute, representing the challengers, is telling the justices those earlier decisions were a mistake.

She also says this is about more than Medicaid. Sandefur is arguing that allowing lawmakers to label any and all new levies an “assessment” essentially guts the voter-approved requirement for a two-thirds vote for raising new revenues.

As I have explained before, the Goldwater Institute is not concerned about health care at all, this lawsuit is all about preserving the GOP’s weapon of mass destruction, Propostion 108 (1992), the “Two-thirds For Taxes” Amendment that requires a two-thirds vote of each chamber to either raise taxes (with rare exceptions), or to reduce or eliminate tax credits or exemptions.

The trial Court and Court of Appeals found that the hospital assessment for AHCCCS expansion fell into one of those rare exceptions. The Goldwater Institute wants the court to read these rare exceptions out of the law so that the two-thirds vote is required in all cases. The Court of Appeals rejected this argument.

Northup, in his newly filed response, countered: “Since this lawsuit was filed, four legislative sessions have convened and adjourned, and none of petitioners’ exaggerated concerns about the impact on the legislative process have come to pass.”

Governor Jan Brewer’s Medicaid (AHCCCS) expansion plan was adopted by a simple majority of the House and Senate, with the Republican governor cobbling together a coalition of Democrats and a handful of members of her own party to vote for it.

That led to GOP lawmakers filing suit, noting they had enough votes to block it if it really is a tax.

But Northup said challengers are ignoring the fact that the legislation adopted by the simple majority does not itself set a tax rate. Instead, it simply empowers Betlach to raise the amount of money he needs from hospitals to cover the state’s share of the expenses.

Put another way, he contends that the fact Betlach is authorized by statute to impose the levy is not the same thing as the Legislature itself imposing the levy, with only the latter requiring that two-thirds margin.

Northup has one other related argument. He said the levy can’t be a tax because the proceeds do not go into the state’s general fund, where they could be used for anything.

Whatever the justices decide could end up being moot.

The American Health Care Act, approved by the U.S. House to replace the Affordable Care Act, would end much of the extra funding the federal government now provides for Medicaid expansion starting in 2019.

Jan Brewer’s Medicaid (AHCCCS) expansion plan also has a provision that terminates the expansion plan should the federal government funding be eliminated.

There is no way that Tea-Publicans in the Arizona legislature would ever agree to continue the AHCCCS expansion plan using state tax revenues. Their health care plan for the poor is that “perhaps you should die and decrease the surplus population.” Arizonans have to vote them out of office.

The Tea-Publican plaintiffs in this case are: Andy Biggs, Andy Tobin, Nancy Barto, Judy Burgess, Chaster Crandell, Gail Griffin, Al Melvin, Kelli Ward, Steve Yarbrough, Kimberly Yee, John Allen, Brenda Barton, Sonny Borrell, Paul Boyer, Karen Fann, Eddie Farnsworth, Thomas Forese, David Gowan, Rick Gray, John Kavanagh, Adam Kwasman, Debbie Lesko, David Livingston, Phil Lovas, J.D. Mesnard, Darin Mitchell, Steve Montenegro, Justin Olsen, Warren Petersen, Justin Pierce, Carl Seel, Steve Smith, David Stevens, Bob Thorpe, Kelly Townsend, Michelle Ugenti, Jeannette Dubreil, Katie Miller, Tom Jenney.