The Dispatch reported last week:
House Republicans are preparing to potentially sue GOP Gov. John Kasich over taking Medicaid expansion to the state Controlling Board, and they would base their lawsuit on the arguments laid out in a formal protest they filed yesterday. Thirty-nine GOP representatives signed a letter in protest of Kasich’s plan to ask the seven-member legislative-spending oversight panel on Monday to approve $2.56 billion in federal money over two years to cover about 275,000 more poor Ohioans under Medicaid. They said Kasich’s maneuver will circumvent the “clear intent of the General Assembly,” a violation of Ohio law.
Kasich has been obsessive in his desire to use Obamacare funds to expand Medicaid in the state, bringing cheers from the left and infuriating conservatives. The Ohio governor has repeatedly used God as his wingman in his quest to shove the program through the legislature — unsuccessfully. Kasich has (for now) become the darling of the left for his single-minded determination to expand the welfare rolls in Ohio. Many are speculating that Kasich is positioning himself for a presidential run that will focus on independent voters. Others think his shift to the left will appeal to moderates in his re-election bid. Still others say Kasich really believes that God has put him in the position to use the power of the state government to help the poor. It may be all of the above.
“You don’t have to say any more prayers about that. We are going to expand,” Kasich told Medicaid-expansion advocates Friday.
Why is it some people don’t get it?… It’s probably because they don’t understand the problem. … Can you imagine being in a position where you have no health insurance?
With this recent move Kasich has upped the ante, creating a constitutional crisis over the separation of powers. Kasich had originally included the Medicaid expansion in his state budget. The legislature stripped it out and then added language prohibiting the state from expanding Medicaid in the final budget sent to the governor. But Kasich struck that language from the budget with his line-item veto. Remaining in the budget after all the changes is a section authorizing the state Medicaid director to do the expansion. Republican legislators maintain that Kasich must receive the final legislative financial support to fund expansion, but Kasich has asked the seven-member Controlling Board, which usually does little more than transfer funds between accounts, to authorize accepting the federal funds to expand the program — though there are no guarantees that the federal government would continue to fund the program in future years, which means the burden of funding the program could suddenly shift to the state in the years to come.
The seven-member Controlling Board is made up of Democrats and Republicans appointed by House and Senate leadership as well as a Kasich appointee. The two Democrats and the Kasich appointee are thought to be a lock for Kasich, and Rep. Chris Widener is widely thought to be the Republican “yes” vote Kasich needs for a majority.
In their strongly worded protest (page 1,262 of the ongoing House journal), House Republicans asserted their legislative authority:
The Ohio Constitution grants legislative authority solely to the Ohio General Assembly, an authority which cannot be delegated. This request is thinly-veiled legislation creating new eligibility levels and funding levels for Medicaid. In fact, the request itself admits as much. Our protest is not about the merits or lack of merit in expanding Medicaid. Our protest goes to the fundamental form of government upon which our country was founded — a Republic of checks and balances and separation of powers. The General Assembly is a co-equal branch of government that made its intent abundantly clear. The controlling board request attempts to subvert that intent, and is contrary to the Ohio Constitution and current statutory law. For all these reasons, we protest the filing of the above described controlling board request.
The signatories include Speaker Bill Batchelder and the two House GOP members of the Controlling Board, Rep. Ron Amstutz and Rep. Cliff Rosenberger. Both Amstutz and Rosenberger are contenders to become the next speaker of the Ohio House. Adding to the drama, the Cincinnati Enquirer reported on Saturday that “House Speaker Bill Batchelder, R-Medina, is expected to replace the two House members on the board with substitutes. One of the replacements is expected to be a ‘yes’ vote and one a ‘no’ vote.”
“In the end,” says the Cincinnati Enquirer, “expect Ohio to expand Medicaid on Monday.”
It should be noted that this is not the first time Kasich has been accused of overstepping his constitutional authority. There are currently two cases before the Ohio Supreme Court that charge the governor with violating the state constitution (see here and here).
Rep. Matt Lynch, a vocal opponent of the Medicaid expansion, said he first heard about Kasich’s move while on a trip to Washington and his first thought was “this is war.”
Lynch said Republican House members are prepared to bring a lawsuit against the governor and the Controlling Board if they vote to circumvent the legislature. “Many of us agreed that we would act as named plaintiffs in the lawsuit to stop the Controlling Board.” Lynch said that precedent is clear that the legislature would have standing to bring the case before the Ohio Supreme Court.
Lynch called for governor to back off to avoid a constitutional crisis, saying Kasich is
grabbing authority away from the legislature and violating the separation of powers. We haven’t seen any indication that he is prepared to back down, but in the end, he should want to uphold the system of government we have with the separation of powers.
“In the end,” said Lynch, “we are prepared to go to the Supreme Court.”
“This is a situation where the governor is assuming authority he doesn’t have under the constitution and it’s an abuse of the controlling board,” said Lynch.