Earlier this week, the Idaho Supreme Court heard oral argument in Regan v. Denney, a case which challenges the constitutionality of the voter passed initiative which expanded Medicaid eligibility in Idaho. The suit was filed by Brent Regan, who serves as the Chairman of the Board of Directors for the Idaho Freedom Foundation.
According to the case description given by the Idaho Supreme Court, “Regan contends that the federal government could change provisions in [certain] sections of the Social Security Act, and that Idaho would be bound by such changes. Thus, Regan contends the Section 56-267 is unconstitutional.”
Here are the top four takeaways from the oral arguments heard by Idaho’s highest court on January 29th:
The case could be dismissed.
There are questions as to whether the case can proceed on procedural grounds. There have been several arguments raised about standing and jurisdiction for the Court to consider. Some of those arguments include whether the Petitioner has standing to file the suit, whether the Supreme Court has original jurisdiction, and whether an extraordinary writ has been properly requested.
If the Court concludes this case is a matter of extreme urgency, they could make a ruling.
The Court could overlook objections to procedural issues, like standing, and “reach the merits” of the case. During oral argument, Justice Stegner pointed out that in the Coeur d’Alene Tribe v. Denney case, the Idaho Supreme Court held, “if there were an urgent need, we might reach the merits, notwithstanding the objection to the Plaintiff not having actual standing.”
That means that even if there are technical (“procedural”) issues with the suit, the Court could find good cause to allow it to proceed anyway. If the Court dismissed the case because of some of the procedural issues, it is likely that a similar case would be filed in another manner which does not have the same technical flaws. Thus, the court may look past the flaws in the interest of swift justice.
Even if the Court were to declare Medicaid expansion unconstitutional, it could still be “on the books” unless the legislature repeals it.
Deputy Attorney General Brian Kane, arguing on behalf of the Respondent Secretary of State Lawrence Denney, said:
“There is no legal duty for the Secretary [of State] to remove a statute from the code… Repeal of a statute is a legislative function… Generally what happens when a statute is declared unconstitutional, an annotation is placed into the Code, indicating that statute is unconstitutional. There are numerous examples of Idaho statutes that have been declared unconstitutional and there is an annotation under them that will indicate, ‘This is the provision of the statute which is unconstitutional,’ … but it remains on the books. We have Constitutional provisions that this Court has ruled unconstitutional. They remain on the books with an annotation underneath it indicating that it has been declared unconstitutional.”
The Court asked whether Idaho can ‘opt out’ of expanded Medicaid if the federal government changes something.
Attorney Bryan Smith argued, “We don’t know.”
Chief Justice Burdick asked Bryan Smith, the Petitioner’s attorney, whether Idaho can back out of expanded Medicaid if the cost is too great or for some other reason. Justice Burdick asked the question several times. He said, “But we can opt out at any time, can we not?”
Smith replied, “We don’t know… once you opt into Medicaid expansion, can you opt out of Medicaid expansion, or are you required to opt out of the entire Medicaid program? So to answer your question, I don’t know if you can…and this is the problem. We are now left with unknowable and uncertain changes the federal government can make and we don’t know and that requires us to play defense instead of offense.”