Ohio Governor John R. Kasich has been in national news forums following a two-vote win by a little known and rarely reported on seven-member bi-partisan legislative oversight panel that did for Kasich what he couldn't get done through regular order in the 132-Member General Assembly, an expansion of Medicaid as provided for by the U.S. Supreme Court in its decision last summer that the Affordable Care Act, and the individual mandate to purchase healthcare insurance contained in it, is constitutional.
What Gov. Kasich, a Republican who squeaked to a narrow win in 2010, couldn't do over months of budget negotiations with a generally friendly GOP legislature that produced a $62 billion spending package, the largest in state history, was to accept $2.56 billion in federal Medicaid funds through June of 2015 that could help about 366,000 low-income Ohioans gain healthcare coverage, which in turn is estimated to save Ohio's budget to the tune of approximately $400 million.
But the narrow but sweet victory Gov. Kasich enjoyed on Oct. 21 could be for naught if a lawsuit challenging the vote of the Controlling Board, filed the day after the controversial vote by The 1851 Center for Constitutional Law, ultimately breaks bad for Kasich, whose aspirations to reenter the national limelight as a potential GOP candidate for president or vice president in 2016 would suffer if the nearly all Republican court agrees with the plaintiffs that "in accepting jurisdiction over and passing the Governor's proposed Medicaid spending, the Controlling Board exceeded its legal authority by acting inconsistently with the intent of the Ohio General Assembly."
It was learned Thursday that the Ohio Supreme Court has granted the 1851 Center's Motion to expedite its lawsuit challenging administrative Obamacare Medicaid Expansion in Ohio by setting a briefing schedule that will have the merits of the case submitted to the Court by no later than December 1.
Maurice Thompson, 1851's chief spokesman and litigator, said in a media release today that the motion granted asserts that "the action is likely to prevail, and that dire budgetary consequences could ensue should the case not be decided prior to January 1, 2014."
Critics have said that while the lawsuit is flawed in several ways, warranting dismissal, the court may give the Republican House Members named on the Mandamus action "a chance to file briefs first in order to avoid the humiliation of a sua sponte dismissal."
The October 22 legal action is filed on behalf of State Representatives Matt Lynch, Ron Young, Andy Thompson, Ron Maag, John Becker, and Ron Hood, and Cleveland Right to Life and Right to Life of Greater Cincinnati. These representatives and groups combine to represent nearly 1 million Ohioans.
The action asserts the following:
- R.C. 127.17 states: "The Controlling Board shall take no action which does not carry out the legislative intent of the general assembly regarding program goals and levels of support of state agencies as expressed in the prevailing appropriation acts of the general assembly."
- The Ohio General Assembly first removed Governor Kasich's proposed expansion of Medicaid spending from the state budget bill, and then inserted a prohibition against the expansion and spending.
- Article II of the Ohio Constitution requires that the legislature, rather than administrative boards such as the Controlling Board, make major policy decisions.
In a 1980 challenge to the Controlling Board, the Ohio Supreme Court held that the Controlling Board's authority is only constitutional because it must adhere to the intentions of the General Assembly, and because of "the availability of mandamus relief" through the High Court, the brief said.
Kasich's burned bridges
While Gov. Kasich was touting a new plan to improve or replace more than 200 local bridges today, his ability to build bridges with former Tea Party supporters who pushed him to a win in 2010 but who have since turned against him over Medicaid expansion and other issues seems to be in ruins.
Gov. Kasich has earned plaudits from many of his critics, who on virtually all other issues disagree with him, for bucking his party on expanding Medicaid. The New York Times has now run two reports, one on the Controlling Board vote and one on his Biblically inspired decision to help the poor, that paints Gov. Kasich, who has backed extreme Republican agenda items, like a national balanced budget amendment, harsh restrictions on women's health rights, limiting voting rights and a rolling back public workers' collective bargaining rights, as a moderate.
As Thompson wrote in the brief, "Despite political sharp political overtones associated with expansion of Medicaid spending and eligibility in Ohio, this case is not about whether the controversial and highly-contested expansion is wise public policy. Rather, the salient and critical legal issue before the Court is whether the Executive Branch of government may effectuate such a major policy change administratively - - not only without a vote of the Ohio General Assembly, but over the objections of the General Assembly, as expressed through its unambiguous acts."
Ohio Attorney General Mike DeWine, also running for reelection next year with Kasich and other Republicans won big in 2010, will serve as legal counsel for The Ohio Department of Medicaid.
The 1851 center referenced another decision by the U.S. Supreme Court, National Federation of Independent Business v. Sebelius, that the spending expansion transforms a state`s Medicaid program from "a program to care for the neediest among us" to "an element of a comprehensive national plan to provide universal health insurance coverage" that "dramatically increases state obligations under Medicaid," and is "an attempt to foist an entirely new health care system upon the States."
Thompson asserts that the Ohio Constitution forbids the delegation of such major policymaking authority to a "small administrative board of legislators and executive branch officials where those policy outcomes diverge from the expressed intent of the Ohio General Assembly."
Gov. Kasich, following his 18 years as a Congressman representing a central Ohio district, launched a short campaign for president in 2000, the same year a Texas governor, George W. Bush, won the GOP primary. Bush lost the national popular vote to his Democratic challenger, then-vice president Al Gore, but became president by a 5-4 ruling by the U.S. Supreme Court, which intervened in State of Florida election laws.
In a separate issue, Kasich's private nonprofit job creation group, JobsOhio, will be the subject of a separate hearing by the Ohio Supreme Court next week on Nov. 6th. Depending on what the court does with the constitutional challenges to the vote at the Controlling Board or the creation of JobsOhio, will help shape the road forward for Gov. Kasich for either a second term as governor or reentering the national spotlight as presidential fodder.
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