Robert Robb is right: refer a clean Medicaid (AHCCCS) restoration bill to the voters


Posted by AzBlueMeanie:

I hate it when I have to agree with the Arizona Republic's über-conservative columnist Robert Robb, but even a broken clock is right twice a day, am I right?

Keep in mind that this latest column from Robert Robb is actually the strategy for a legal challenge to Governor Jan Brewer's Medicaid (AHCCCS) restoration plan, likely from his old employer, the Goldwater Institute, which is actively opposing the Governor's plan. If the Governor's plan is enacted by the legislature, the Goldwater Institute will file a lawsuit. (To his credit, Robb has written several columns arguing in favor of Governor Brewer's plan as a practical matter, much to Goldwater's chagrin I imagine).

I have had several Democratic legislators tell me that they agree with the Governor's legal analysis that the hospital bed tax is just a provider assessment that can be imposed by an agency head. I suspect this is wishful thinking. I have little confidence in the Governor's lawyers. I have previously posted that I disagree with this analysis. I believe this is rightly characterized as a tax, and any new tax requires a two-thirds super-majority vote of both chambers of the legislature to be approved under Prop. 108 (1992). This is why I have long argued for the repeal of the undemocratic Prop. 108.

Robert Robb writes, Senate passes Medicaid expansion. Or did it?

According to news reports, the Arizona Senate passed Gov. Jan Brewer’s Medicaid expansion plan. But did it really?

There are two serious legal problems with the Senate’s action.  Under
Brewer’s plan, the head of the state Medicaid program would establish a
new provider assessment, mostly on hospitals, to pay for the state’s
cost of providing coverage principally to childless adults. The state
Constitution requires a two-thirds vote of the Legislature to increase
state revenues, including “the imposition of any new state fee or
assessment or the authorization of any new administratively set fee.”

That would seem precisely on point.

Two-thirds approval would require 20 votes in the Senate. The bill containing Brewer’s Medicaid proposal only got 19.

The second legal problem is the attempt to shoehorn Medicaid
expansion into the budget bills. The assessment is a revenue measure,
not an appropriation
. The state Constitution says that bills passed by
the Legislature can only cover “one subject.” With regard to
appropriations, the Constitution says: “The general appropriation bill
shall embrace nothing but appropriations for the different departments
of the state …. All other appropriations shall be made by separate
bills, each embracing but one subject.”

The Senate hammered the Medicaid expansion into the health and
welfare budget reconciliation bill, which cannot be argued to embrace
but one subject. It has over 50 provisions ranging from setting
reimbursement rates for Medicaid providers, to establishing county
contributions for long-term care programs and the confinement of
sexually-violent offenders, to requiring welfare recipients to take drug

So, a very serious argument could be made that the Arizona Senate did
not, in fact, pass the governor’s Medicaid expansion proposal.

Actually the Senate did pass it, but the Senate action can be legally challenged as constitutionally invalid. Assuming that the legislature enacts Governor's Brewer's plan and she signs it into law, this will require litigation to set it aside.

While it ain’t over ‘til it’s over, it seems clear that Medicaid
expansion can’t get the two-thirds approval needed to be cleanly enacted
under the state Constitution. Referring it to voters would require only
a simple majority, which the proposal seems to have.

If the expansion is enacted without a two-thirds approval, or buried
within a budget reconciliation bill, opponents will sue. So far, Brewer
and the hospitals, the financial interest with skin in the game, prefer
the litigation risk to the electoral risk.

If the consequences weren’t so great, I’d say they were making a bad
bet. It seems to me a slam duck that the assessment requires a
two-thirds vote and Medicaid expansion has to be passed as a stand-alone

But courts get shy when the consequences are large. And the consequences in this case would be monumental.

This is an excellent point. You will recall that when the legislature enacted the AHCCCS enrollment freeze as part of its budget cutting package, a lawsuit was filed on the grounds that the legislature's actions violated both the Healthy Arizona Prop. 204 (2000) and the Voter Protection Act, Prop. 105 (1998).

Rather than require the legislature to restore the funding in compliance with the will of Arizona voters in enacting these two citizens initiatives, the court claimed an ambiguity in Prop. 204 and relied on the separation of powers doctrine of a political question to rule that the court was powerless to compel the legislature to restore the funds under Prop. 204. The collateral damage was that the court largely disregarded the mandate of the Voter Protection Act, rendering it no protection at all, the voters be damned.

I am disinclined to believe that the court is willing to render Prop. 108 (1992) null and void to sustain Governor Brewer's AHCCCS restoration plan. Prop. 108 has been the firewall for anti-tax zealots in this state ever since it was enacted. The Arizona legislature has not enacted a new tax in the past 20 years.


The Arizona Constitution allows legislation, in whole or in part, to
be referred to voters by petition. So if Medicaid expansion were buried
within a reconciliation bill, just the expansion could be referred.

Supporters would then have to initiate the litigation, arguing that
it couldn’t be referred because it was part of an appropriations bill
and appropriations aren’t generally referable. Opponents could then
argue in the alternative: let our referendum go to a vote, or declare
that the expansion was unconstitutionally enacted.

At that point, judges wouldn’t be being asked to overturn a
legislative enactment but to thwart the right of voters to vote on it.
Judges deny it, but such things matter.

Evil bastards! That's actually pretty brilliant. I have to admire that.

For all these reasons, House Speaker Andy Tobin has the right
approach: refer the expansion to the voters this fall. Let’s have a
clean fight on the issue, rather than a legal brawl over the
constitutionality of its enactment

There is, however, one unfortunate omission in Tobin’s current
proposal. One of the benefits of going to the ballot is that it would
permit the existing general fund liability for the previous Medicaid
expansion, Proposition 204 in 2000, to be extinguished.

Only if that is actually part of the ballot measure referred to the voters. There is no reason why a complimentary measure which is compatible with Prop. 204 (2000) cannot be drafted. Whether it would have the votes in the legislature for referral to the ballot is another matter.

So we are left with two bad options: first, refer AHCCCS restoration as a refrendum to the voters in a costly special election this fall for a plebescite; or second, piss away taxpayer dollars on costly litigation in court, with a substantial risk of loss, and enrich the lawyers at the Goldwater Institute.

I have to agree with Robert Robb: "refer the expansion to the voters this fall. Let’s have a
clean fight on the issue, rather than a legal brawl over the
constitutionality of its enactment."

Longterm, we need a ballot measure to repeal Prop. 108 (1992), and to throw the radical Tea-Publicans out of office.

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AZ BlueMeanie
The Blue Meanie is an Arizona citizen who wishes, for professional reasons, to remain anonymous when blogging about politics. Armed with a deep knowledge of the law, politics and public policy, as well as pen filled with all the colors stolen from Pepperland, the Blue Meanie’s mission is to pursue and prosecute the hypocrites, liars, and fools of politics and the media – which, in practical terms, is nearly all of them. Don’t even try to unmask him or he’ll seal you in a music-proof bubble and rendition you to Pepperland for a good face-stomping. Read blog posts by the infamous and prolific AZ Blue Meanie here.


  1. “Longterm, we need a ballot measure to repeal Prop. 108 (1992)”

    That would certainly be an interesting event. I would love to see what groups would fund such a measure, thereby stating publicly that they think it is too hard to raise taxes on the rich and the poor of Arizona. Shoot, I imagine you might even get Jan Brewer to drop a $20 bill to fund the effort.

    Thane Eichenauer