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Can Arizona conservatives beat the clock to block Medicaid expansion from taking effect Jan. 1?

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September 15, 2013

By Maresa Strano


PHOENIX, Arizona: This January, Arizona Governor Jan Brewer (R) appealed to a reluctant Republican-controlled state legislature to expand Arizona's Medicaid rolls under the auspices of the Affordable Care Act, commonly referred to as Obamacare. Her efforts culminated in June with the successful passage of a law outlining a plan for implementation. Days later, a group that disapproved of Brewer's alignment with President Obama's health care overhaul, The United Republican Alliance of Principled Conservatives, filed a referendum to block the Medicaid Expansion law from taking effect, but the referendum failed to collect the required 86,405 valid signatures to land on the November 2014 ballot before the September 11, 2013 deadline.[1]

With that setback, Arizona has entered a state of déjà vu for the anti-Obamacare movement. Now, opponents - including the 36 Republican members of the state legislature who voted against expansion - have turned to a lawsuit brought by the conservative Goldwater Institute as their best hope for shutting it down before expansion officially goes live Jan. 1, 2014, with eligible Arizonans beginning to enroll as early as Oct. 1.

Once in effect, the Arizona expansion law would require participating hospitals to pay a set expansion "fee" to the state, apparently to help offset the marginal costs of future reductions in the federal subsidy. The Goldwater Institute filed on the grounds that this "fee" would operate as a virtual tax, and thus for it to be controlled by the executive branch, as the current expansion law authorizes, would be a violation of state laws governing separation of powers.

While the imposition of such a fee is an authority given to state agencies "over 80 times in the past five years,"[2] according to a Brewer spokesperson, critics insist that the fee's resemblance to a tax is too close for constitutional comfort, per Article 3, Section 22, the distribution of powers.[3]

In that vein, the lawsuit challenges the constitutionality of the procedural metric by which the expansion was put to vote and able to obtain legislative approval. The suit argues that the Brewer administration deliberately misrepresented the hospital fee to circumvent the higher-approval thresholds required for tax authorization; Had the fee been introduced as a tax instead, the law would have called for a two-thirds majority vote from both chambers in order to pass muster.[3][4]

“If this bill is not stopped, a dangerous precedent will have been set that extends far beyond Medicaid expansion," stated one Goldwater Institute attorney, mirroring the mantras famously recited by those who just last year were leading the fight against the implementation of Obamacare- Brewer among them. The attorney continued, "Blocking implementation of this law is critical to preserving the democratic protections Arizonans have enshrined in their constitution.”[5]


Gov. Jan Brewer (R-AZ) was among the first of her hardline anti-Obamacare cohort to embrace Medicaid expansion.


In March 2010, after the federal government enacted the Affordable Care Act, including a mandate that would require everyone in the country to purchase insurance, Brewer called a special session of the State Legislature in order to seek permission to sue the federal government on behalf of the state. Terry Goddard, then the Democratic State Attorney General, had chosen not to join other states in filing suit against the federal government over health care reform, believing it had "little chance of prevailing," and Brewer decided she should intervene. (It should be noted that, at the time, both Brewer and Goddard were candidates in the state's gubernatorial race - Goddard being the presumptive Democratic nominee as opposed to Brewer, who was facing a heavily competitive Republican primary contest.)[6]

Following the U.S. Supreme Court ruling to uphold the Affordable Care Act in June 2012, state officials like Brewer who had long fought for its repeal were faced with the dilemma of how to proceed with the few options which had been left for them to decide, including whether to participate in the federally controlled Medicaid expansion and whether to set up a state-specific versus federal health-exchange program. Several of Brewer's Republican colleagues pledged to keep their states outside the sphere of Medicaid expansion: in some cases to demonstrate their enduring commitment to opposing the law, or else because they mistrusted the federal government to honor its long term financial promises for the expansion.

In her 2013 State of the State address, however, Brewer resolved this particular dilemma for Arizona by breaking ranks with the Republican party on the issue of Medicaid.[7] Conceding the futility of continued opposition to Obamacare in the wake of the Supreme Court decision and Obama's re-election victory, Brewer moved on to discuss the considerable popular support already shown for expanding patient eligibility: residents had previously voted twice to make the state government provide free care for everyone up to the federal poverty line.[7]

During her speech, Brewer appealed to the Republican-led legislature to consider the merits of letting the federal government help finance an expansion which seemed likely to occur in Arizona regardless. She also pointed to the economic and job saving potential of including Arizona in the federal expansion.[7]

Despite embracing this feature of the Affordable Care Act, Brewer made it clear she would not settle for less federal funding than would be necessary to support the potential addition of 300,000 newly-eligible Arizonans to the Medicaid rolls, to "protect rural and safety-net hospitals from being pushed to the brink by growing their cost in caring for the uninsured."[8]

See also


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