JOHN BRUMMETT: Raging against the needy

If the state Legislature should fail in the fiscal session that opened Wednesday to approve a budget to spend Medicaid money in the state--a bizarrely draconian but apparently real possibility--then the issue would begin to ripen for the courts, both federal and state.

And we all know how much conservatives love for courts to decide matters.

You surely have achieved command by now of the dramatic and high-stakes situation: Continued Medicaid expansion by the private-option form, now called Arkansas Works by Gov. Asa Hutchinson, was approved by general legislation in last week's special session. Thus it has been properly folded into the budget to be considered in this fiscal session for the vast Human Services Department.

But that budget, in the form of a formal appropriation, requires a three-fourths vote for passage. Ten senators are kowtowing to right-wing anti-government types and vowing, at least for now, to vote "no."

That would leave the Senate two votes short of the 27 needed to achieve a three-fourths majority. And any effort to pass a DHS budget without the expansion money would lose even more votes the other way.

In Washington they call that gridlock, unless they call it dysfunction, unless they call it an unprintable.

So, yes, there indeed exists a rather plain scenario by which the fiscal session could go home--surely by recess, not adjournment--without any authority after July 1 to spend even a dime for any of the vast and dire human needs covered in a poor state by Medicaid.

"Oh, there'd be a lawsuit. And we might file it," I heard a man say the other night when the threatened legislative train wreck came up. The man is affiliated with some kind of public advocacy group.

A state lawsuit could be based on an argument by veteran columnist Ernie Dumas in the Arkansas Times. It's that, actually, the legislative leadership could declare the DHS budget approved by a simple majority vote. It seems iffy to me, but Dumas has been around longer and holds the advantage of actually having researched the matter.

Someone conceivably could bring a state suit alleging that the state has a responsibility to fund Medicaid to provide for the general welfare, although that is much less clear than the state constitutional requirement to provide an adequate and equitable education.

A federal court lawsuit could arise two ways.

One is that the Hutchinson administration could pursue the litigation itself. It could argue that its right to exercise its executive authority to run the state to get human needs met under a lawfully enacted federal-state partnership is being impaired by the arbitrary and capricious acts of a small minority of legislators.

The other is that a public advocacy group could file the suit in behalf of needy beneficiaries, making this argument: Federal money exists and is intended to be sent to states on a matching basis to attend nationwide to the dire human needs of people who can't help themselves, such as the aged and disabled; but, in Arkansas, needy beneficiaries were being unequally protected--wholly unprotected--owing to those arbitrary and capricious acts of a tiny minority of legislators obstructing the federal intention and the overwhelming state legislative will.

The argument would not be that it violates federal requirements to leave Medicaid unexpanded. That most decidedly is not the case, owing to the ruling by the U.S. Supreme Court that upheld Obamacare generally but said the matter of Medicaid expansion had to be optional for the states.

No, the aggrieved parties with a cause of action would be dramatically compelling plaintiffs covered under basic, longstanding and uncontroverted Medicaid, and held hostage by the political quagmire. I refer, for example, to asset-depleted and demented old people in nursing homes and developmentally disabled youths with such expensive needs that few Arkansas families could possibly pay entirely for them privately.

Court action would be uncertain. And a court solution would be destructive to the concepts of productive political dialogue and representative policy debate. It should be a last resort.

The obstructing legislators could go two ways. They could choose to cast irresponsible votes and let a lawsuit or lawsuits get filed, after which they could enjoy railing against activist courts. Or they could so despair over looming court involvement that they would relent on their destructive scheme to use an antiquated state constitution's super-majority provision to abuse the appropriation system and win a debate they lost straight-up and fair-and-square the week before.

The best solution is for at least two of 10 holdout state senators to do the sensible thing, and to fight the good conservative fight on other issues and other days--and with majorities, which surely they can achieve in this day and age and state.

Conservatism rages in Arkansas. It needn't and shouldn't draw a line against the neediest based on a one-fourth minority.

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John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, was inducted into the Arkansas Writers' Hall of Fame in 2014. Email him at [email protected]. Read his @johnbrummett Twitter feed.

Editorial on 04/14/2016

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