As Arizona debates the merits of a proposed plan to expand Medicaid, we should consider whether it’s even legal. As currently written, the plan is unconstitutional. That’s because it gives sweeping power to the Director of AHCCCS (Arizona’s Medicaid program) to make law, a job the state’s constitution says must be left to the legislature.
To pay Arizona’s share of the massive Medicaid expansion, the state will charge a “provider tax” to hospitals. But according to the draft language, legislators must relinquish their lawmaking authority to the unelected AHCCCS director, who determines the amount of the tax and can even choose who has to pay and who will be exempt.
Handing over the legislature’s power to an administrator is likely an attempt to get around the voter-approved Proposition 108, a state constitutional amendment that requires 2/3 of both chambers of the legislature to approve tax increases. There’s a narrow exception for fees that are set by state officers, which only require the normal majority vote. But to make an end-run around Prop 108, the plan ignores an even more fundamental constitutional principle: separation of powers.
Both the federal and state constitutions divide government power into three distinct branches, which check and balance each other to protect individual liberty from concentrated power. The Arizona Constitution goes a step further than its federal counterpart, declaring that these powers must remain “separate and distinct.” Both constitutions assign the lawmaking power to the elected legislature to protect the people from the decisions of an unaccountable bureaucracy. The draft language blatantly ignores this important constitutional protection, consolidating the taxing power in the hands of a single unelected bureaucrat who is free to play favorites.
Arizona has a rich history of sheltering its citizens from federal overreach. State lawmakers should not ditch that tradition – and our own constitution – to do the federal government’s dirty work.
AZ Governor's Office: Proposed Medicaid expansion bill
Goldwater Institute: Ten Reasons to Decline Medicaid Expansion
Goldwater Institute: Coons v. Geithner