‘Stop Obamacare Act’ Doesn’t Violate State Constitution: AG

Proponents of expanding Medicaid in Tennessee got another dose of bad news last week when the state’s ranking government lawyers doused the idea that an anti-Obamacare law passed in 2014 might be unconstitutional.

Introduced by Sen. Brian Kelsey of Germantown and Rep. Jeremy Durham of Franklin, the so-called “Stop Obamacare Act” won passage about a year and a half ago along GOP-dominated party lines, 64-23 in the House and 23-6 in the Senate.

It was designed by the Republican sponsors to put up roadblocks to Affordable Care Act implementation in the Volunteer State by mandating that lawmakers get the final up-or-down vote on any agreement a Tennessee governor makes with the federal government that expands Medicaid eligibility under President Obama’s signature health-care reform initiative.

The Stop Obamacare Act falls well within lawmakers’ constitutional authority and doesn’t violate the Tennessee Constitution’s “separation of powers” principles, according to an opinion co-authored by Attorney General Herb Slatery and Solicitor General Andrée Sophia Blumstein.

The Kelsey-Durham law “involves nothing more than an exercise of legislative authority by the General Assembly through constitutionally permissible means,” the attorney’s wrote in their opinion, published Sept. 14.

sos haslam yarbroSenate Democratic Caucus Chairman Jeff Yarbro of Nashville had requested the opinion. Yarbro, a freshman state legislator, also asked for basic clarification as to whether the governor in fact needs acquiescence from both chambers of the General Assembly to implement a Medicaid expansion agreement, as the Stop Obamacare Act purports to require.

While the governor is free to negotiate all he wants with the federal government, he must indeed win the Legislature’s stamp of approval to enact any agreement with Washington that expands the number of low-income Tennesseans eligible for taxpayer-financed health care, wrote Slatery and Blumstein.

“Because the General Assembly has authorized the executive branch to negotiate and cooperate with the federal government regarding expansion of the Medicaid program, the absence of a joint resolution passed pursuant to (state law) would not prohibit the governor from negotiating an agreement with the federal government to expand Medicaid,” the opinion stated. “Absence of authorization by the General Assembly in the form of a joint resolution would, however, prohibit the governor from making a final decision to bind the State of Tennessee to that agreement or to implement that agreement.”

Republican Gov. Bill Haslam presented a plan to the General Assembly back in January seeking to enlarge the state’s publicly funded medical-coverage eligibility pool by about 300,000 Tennesseans of modest means.

Haslam promoted his “Insure Tennessee” proposal as a more market-oriented approach to government-funded coverage than simply expanding traditional Medicaid.

Haslam secured the Obama administration’s blessing on the policy, but Insure Tennessee died in state legislative committees, both during a special session and then again after the issue was resurrected a couple months later.

Key Republicans in the General Assembly, like House Speaker Beth Harwell and Lt. Gov. Ron Ramsey, have said there’s little chance any kind of Medicaid expansion legislation will succeed until Obama is out of office.

Randy McNally, an Oak Ridge Republican who chairs the powerful Senate Finance, Ways and Means Committee, told TNReport recently he expects Insure Tennessee will remain an oft-discussed topic during the 2016 legislative session.

But the bulk of GOP lawmakers won’t give their endorsement to any plan that doesn’t involve the state assuming greatly more in the way of administrative control over the Medicaid program than under the current arrangement with the federal government, he predicted.

“It will come up, but I don’t foresee it passing,” McNally said in a Sept. 10 interview.

McNally said “something similar to a block grant” issued to Tennessee “on a permanent basis” that included a lot more flexibility to create and administer policy might win majority support in the General Assembly.

Haslam Concludes Initial Campaign to Highlight Highway-Funding Shortfall

Gov. Bill Haslam has wrapped up his tour around Tennessee to drum up support for potentially raising the state’s 21.4 cent per gallon tax on gasoline.

Haslam participated in conferences with local political and business leaders for the past six weeks in 15 towns and cities across the Volunteer State. Joining him to highlight road infrastructure deficiencies, highway and bridge maintenance needs and funding deficits for such projects were Transportation Commissioner John Schroer and other TDOT staff.

Despite his concerted effort to stress shortages of state and federal transportation dollars, the Republican Tennessee governor told reporters following the final meeting in Lenoir City on Sept. 10 that he’s not yet sure if he’ll be proposing a tax hike in the coming legislative session, which gets underway in January.

Part of the purpose of the tour around the state, in addition to getting a better sense of the transportation priorities on the minds of local elected leaders, has been to prime the pump for the possibility of a tax-hike proposal.

“The good thing about conversations is that people get a better grasp of what the situation is,” said Haslam last week.

Senate Transportation Committee Chairman Jim Tracy is planning to begin a tour of his own around the state staring Thursday to further explore road infrastructure needs, as well as the general public’s tolerance level for paying government more at the gas pump.

Haslam said he’s fully supportive of Tracy riding the road-funding circuit himself this fall.

However, Tracy is skeptical the GOP-run General Assembly is prepared to take up a fuel tax increase next year.

The Republican from Shelbyville has also said a priority of his own in 2016 is to siphon more than $260 million from the general fund back into the state’s road construction-and-maintenance accounts.

Tracy argues that money was “raided” from the roads budget back when Democrats controlled the Legislature in the 2000s.

Jim Tracy Bill Haslam“We have a covenant with our citizens that the gas tax charged by the state at the pump is dedicated to transportation-related purposes and not something totally unrelated,” Tracy said in a press release announcing that he and Rep. Eddie Smith, R-Knoxville, are sponsoring a bill in 2016 to refill the money into road funding. “It is such an important principle in some states that it is provided for in their Constitutions. This money should have never been diverted for other state government purposes and should have been paid back at the first available opportunity. It’s past time we pay it back.”

Haslam affirms he’s open to discussing that issue in the context of larger state general fund budget deliberations with the Legislature. But the amount Tracy and Smith are talking about doesn’t come close to addressing the $6 billion or so backlog in transportation construction and maintenance that the state is facing, said the governor.

“That’s a possibility,” Haslam said of the Tracy-Smith bill to route more than a quarter of a billion back to roads. “But the point I would make is that doesn’t solve our problem. That would take care of one road. Alcoa Highway in Knoxville that they’ve been working on since before I was the mayor of Knoxville — so, for at least the last 15 years people have been saying it is coming — well, it still hasn’t happened. And just that project alone has a $270 million price tag on it. Same thing in Memphis. There is one road in Memphis, Lamar Avenue, that we need to fix. Same thing, $270 million price tag.”

Throughout the statewide tour, Haslam and TDOT staff have been emphasizing a 2015 Tennessee Comptroller’s report that concluded current-level gas-tax revenues are insufficient to maintain existing roads and bridges in the state.

“Cars and trucks are more fuel-efficient, construction and labor costs have risen, and Congress has not passed a long-term transportation funding bill in 10 years,” a press release from the governor’s office this week declared. “Tennessee’s population is expected to grow by 2 million by 2040, which puts a greater demand on the state’s infrastructure.”

Tracy Maps Out Tour Across TN to Discuss Roads, Possible Gas Tax Hike

Senate Transportation Committee Chairman Jim Tracy is planning an info-gathering, public-opinion-gauging trek of his own to follow-up Gov. Bill Haslam’s roadshow to talk up Tennessee’s transportation needs.

The Shelbyville Republican announced this week he’ll be visiting eight cities across Tennessee over the next several weeks, beginning in Nashville on Sept. 17.

Among the topics that’ll come up is upping the portion of pennies state government will siphon off per gallon of gas motorists purchase.

Tracy’s plan is to facilitate community forums on the conditions, needs and funding picture involving the state’s transportation system.

A press release from his office said the meetings will include presentations from the state comptroller’s office and road-infrastructure planning experts.

Although the prospect of raising gas and diesel taxes in the state is in the discussion mix, Tracy — along with other powerful GOP state lawmakers like Senate Majority Leader Mark Norris and House Speaker Beth Harwell — has indicated he doesn’t expect the General Assembly to pass a hike in the 2016 legislative session.

“We’re a long ways from getting there, because we’ve got a lot of studying to do to figure out how much we’re going to need to fulfill the roads and the bridges across the state,” Tracy told TNReport.

“I want to see what our needs are to the next 10 to 15 years,” he said. “We don’t need a band-aid approach. We’re not running this like Congress is. Congress is patching it three months at a time. Tennessee is one of the best run states in the country — we want to keep it that way and to do that we have to plan for the future.”

TN Fuel Efficiency Chart Haslam administrationGov. Haslam has been meeting over the summer with business leaders, politicians, roadbuilders and freight haulers to impress upon them that there’s a long-range road-building and repair funding deficit looming in Tennessee.

The state has a transportation project backlog in excess of $6 billion, according to Haslam.

The governor told TNReport last month he’s acutely aware that the topic of raising gas taxes — or any tax — is typically an unpopular one in Tennessee. But Haslam hopes people connect good roads with improved long-term prospects for a good economy.

“I think the more you talk about this, the more people understand the need,” said the governor. “In general, when we talk about changing the way we pay for anything, nobody likes that idea. But when you explain, ‘Hey, you are actually paying 30-50 percent less to drive on our roads than you did 20 years ago.’ And those roads cost twice as much to maintain and build. People understand that — that you just can’t keep going that direction and have it work forever.”

Haslam hasn’t yet committed to proposing a gas tax hike when the Legislature convenes in January. But vehicles are getting better and better fuel efficiency, and the administration argues that the current 21.4 cents per gallon levy isn’t covering new construction and maintenance costs — a perspective backed by the state’s comptroller.

“In the last several years, revenues dedicated to transportation have stagnated in Tennessee and across the country,” according to a report issued earlier this year by the state’s Office of Research and Education Accountability.  “Tennessee’s fuel taxes are not expected to be sufficient to maintain existing infrastructure and meet long-term transportation demands.”

The governor has said he’s uninterested in either the state taking on debt to pay for highways in Tennessee, or introducing toll roads as a new revenue stream.

Tennessee’s chapter of Americans for Prosperity, a nation group associated with the billionaire Koch brothers that advocates lower taxes and shrinking government, is leading the charge to defeat any effort to make motorists pay more at Volunteer State fuel pumps.

AFPTN, which successfully lobbied last winter to derail the Haslam administration’s plan to expand Medicaid in Tennessee, is pressing federal and state lawmakers to fight against any gas tax increase proposals in Nashville or Washington.

Haslam’s tour of the state to discuss “transportation and infrastructure needs” winds up next week, with stops in Chattanooga and Cleveland on Wednesday, and Knoxville and Lenoir City on Thursday.

Dates and venues for Sen. Tracy’s transportation forums are listed below:

Nashville
Thursday, September 17th at 2:00 p.m. CDT
Legislative Plaza, Senate Hearing Room
301 6th Avenue NorthNashville, TN 37243

Columbia
Tuesday, September 22nd at 10:00 a.m. CDT
Cherry Theater at Columbia State Community College
1665 Hampshire Pike
Columbia, TN 38401

Memphis
Tuesday, September 29th at 10:00 a.m. CDT
Shelby County Board of Commissioner’s Chambers
160 North Main Street
Memphis, TN

Huntingdon
Tuesday, September 29th at 6:00 p.m. CDT
The Carroll Bank and Trust Community Room
19510 West Main St.
Huntingdon, TN 38344

Martin
Thursday, October 1st at 10:00 a.m. CDT
Northwest Tennessee Development District Office
124 Weldon Drive
Martin, TN 38237

Jackson
Thursday, October 1st at 2:00 p.m. CDT
Southwest Tennessee Development District Office
102 E. College Street
Jackson, TN 38301

Knoxville
Thursday, October 15th at 10:00 a.m. EDT
Bridgewater Place
205 Bridgewater Road
Knoxville, TN 37923

Chattanooga
Wednesday, October 28th at 2:00 p.m. EDT
Hamilton County Commission Room
624 Georgia Avenue #401
Chattanooga, TN 37402

Kingsport
Thursday, October 29th at 10:00 a.m. EDT
Kingsport Center for Higher Education
300 West Market Street
Kingsport, TN 37660

No GOP Presidential Endorsement from Haslam Yet

With just over six months to go until the Republican presidential primary in Tennessee, Gov. Bill Haslam isn’t ready to pick a favorite.

Given that he’s still serving as chairman of the Republican Governors Association — a post he was tapped for last November, and will hold until a new chairperson is selected this November — Haslam said Thursday he doesn’t think it’s a good idea to take a side yet.

“We have four existing governors running and five former governors, so it’s probably best for me to stay out of it until I am either not in this role or that field narrows some,” Haslam said following a stop off in Shelbyville on his tour across the state to discuss transportation and road funding.

The sitting governors include Chris Christie of New Jersey, Scott Walker of Wisconsin, Bobby Jindal of Louisiana and John Kasich of Ohio.

The former governors are Jeb Bush of Florida, Rick Perry of Texas, Jim Gilmore of Virginia, Mike Huckabee of Arkansas and George Pataki of New York.

Seventeen recognizable candidates are currently hunting the GOP nomination.

Haslam said he doesn’t doubt that front runner Donald Trump is hitting on themes that resonate with Tennessee Republican voters, just as he is across the country. National polls show the blunt-spoken New York billionaire plainly leading the GOP field — and even in other some of the establishment-favorites’ home states, like Bush’s Florida.

But Tennessee’s governor said a lot of debating and campaigning has yet to be done before the Volunteer State’s GOP presidential primary on Super Tuesday — March 1 — and he suggested that politicians with real-world governing experience will gain ground as the candidates’ policy proposals get fleshed out and vetted.

“More and more, the race will turn down to who can actually solve the very real problems that we have,” he said.

Nashville’s ‘Local Hire’ Amendment May Come Under Legislative Fire

Tennessee GOP lawmakers who’ve in the past taken steps to thwart locally enacted economic regulations that exceed state and federal requirements say they’re undeniably rubbed the wrong way by Metro Nashville voters approving a “local hire” measure earlier this month.

And that may very well result in the General Assembly taking a vote of its own on Amendment 3 after the Legislature convenes for its 2016 session.

Jack Johnson, chairman of the state Senate Commerce and Labor Committee, told TNReport last week he basically loathes the ballot measure local voters approved by a large margin on Aug. 6.

“It’s awful. It’s awful,” the Williamson County lawmaker said of Amendment 3.

“It is a very, very bad and dangerous precedent for a political subdivision in the state of Tennessee like Metro Nashville to be enacting these types of policies that are hostile toward business, hostile toward economic growth,” said Johnson. “And so I do expect the General Assembly to take a good look at it when we reconvene.”

Amendment 3 earned 58 percent of the vote in the election, and it was the only question on the ballot to win consent.

Metro Nashville’s charter now requires that 40 percent of the labor performed on new building projects involving $100,000 or more of Metro financing be carried out by workers who reside in Davidson County.

Amendment 3 also tacked on new charter language requiring “that a significant effort be made to ensure that no less than Ten Percent (10%) of the Total Construction Worker Hours are performed by low income residents of Davidson County.”

Amendment 3’s supporters argued that it will help fight local poverty and alleviate joblessness. Opponents say it will expand government bureaucracy and balloon construction costs.

Gov. Bill Haslam indicated after the election that he, like outgoing Nashville Mayor Karl Dean, considers himself in the latter camp. Haslam told TNReport last week that he regards the measure as “problematic.”

“I just don’t think that there is any doubt that it will make projects more expensive and take them longer to get done,” said the governor, although he added that he is uncertain at this time what, if anything, the state will do in response.

Johnson noted that the Legislature under Republican leadership over the past several years has shown a willingness to thwart local regulatory efforts deemed damaging to the state’s pro-business reputation.

“I understand that the voters of Nashville approved it, but still, we have to look at the state in totality in terms of our economic progress, and we can’t have these bad policies being implemented, especially in our state capital,” said Johnson.

In 2013, Sen. Brian Kelsey of Germantown and Rep. Glen Casada of Franklin co-sponsored legislation — which ultimately became law — prohibiting local governments from mandating more stringent employee-benefit packages or higher minimum-wage requirements than already required by state or federal law.

Kelsey, who chairs the Senate Judiciary Committee, told TNReport after the Amendment 3 vote that he regards it as an attempt to “unfairly discriminate against citizens from other counties” in Middle Tennessee.

“There is a serious equal-protection constitutional question that needs to be investigated and I look forward to researching that question,” Kelsey said.

Casada, too, doubts the legality of Amendment 3. And like local opponents of the measure who spoke out against it during the campaign, he predicts the requirement “will drive up the costs of projects.”

“I don’t think it is prudent,” said Casada, who chairs the House Republican Caucus, which controls 73 of the lower chamber’s 99 seats.

The state’s attorney general hasn’t yet weighed in on the legality of Amendment 3, but could if asked to do so by the governor or a state lawmaker.

John Finch, a local building company executive who heads a business coalition opposed to Amendment 3, said the future now holds uncertainty for construction projects in Davidson County. Unless it is struck down by the courts or nullified by the Legislature, Middle Tennessee’s economy will suffer, he said.

“Nashville is part of the regional economy,” Finch told TNReport. “Nashville needs for General Motors to come and have a giant plant in Spring Hill. Nashville needs for manufacturing plants and other important developments to be in the surrounding counties. And we need the workers who live in the surrounding communities to be able to work on Nashville projects.”

Nashville’s two finalists for mayor — Metro Councilwoman Megan Barry and former Metro School Board Chairman David Fox — were on opposite sides of the Amendment 3 debate.

Barry told Nashville Public Radio that she supported Amendment 3, but won’t in fact be surprised if the state ultimately overturns it. Fox said he believes Amendment 3 was “well-intended,” but that Davidson County currently has “a huge labor shortage,” and the local-hire mandate will “kill projects.”

Haslam: State Only Associates with Planned Parenthood as Required by Federal Law

Responding to inquiries from Republican lawmakers about Tennessee government’s relationships to Planned Parenthood in wake of the controversial “sting” videos released this summer by a national anti-abortion group, Gov. Bill Haslam sent a letter Wednesday assuring them tax dollars are not used to fund abortions “except as required by federal law.”

“My staff and I have heard from many of you recently who share our shock and concern at the callous disregard for life displayed in the undercover videos of persons employed by Planned Parenthood,” wrote Haslam in an Aug. 12 correspondence to GOP legislators that his office released to the media on Thursday (see below).

“You understandably want to make sure the activities discussed in these videos are not happening i n Tennessee,” the governor’s letter stated.

Haslam noted that “it is a Class E felony to buy or sell an aborted fetus” in Tennessee.

“I would strongly encourage law enforcement and the district attorneys across the state to prosecute anyone who violates that law to the fullest extent possible,” he wrote.

Haslam declared the state’s Department of Health “does not perform ANY abortion related services in any of their local health departments.”

Clinics and surgery centers that receive taxpayer monies are prohibited from using the funds to perform abortions “except as required by federal law when the pregnancy is the result of rape or incest or the woman is in danger of death without such a procedure,” according to Haslam’s letter.

The governor added that while Tennessee “does not contract directly with Planned Parenthood nor send any state dollars to them at our initiative,” there are “a few instances in which the state indirectly interacts with the organization.”

Haslam said the state’s HIV/AIDS and syphilis prevention vendors in Memphis, Knoxville and Nashville subcontract with Planned Parenthood “to assist with those services.”

“In 2011, my administration attempted to terminate such sub-contracts with Planned Parenthood,” wrote Haslam. However, Planned Parenthood sued and won in federal court, he said.

Haslam also said TennCare, the state’s Medicaid program that serves primarily low-income women and children, doesn’t pay for abortions “except as required by federal law” with respect to rape, incest or if the pregnancy poses a threat to the mother’s life.

“No other circumstances are covered,” wrote the governor.

Members of the Legislature’s Joint Government Operations Committee are scheduled Wednesday to conduct hearings on Planned Parenthood operations in Tennessee. Gov. Haslam’s Department of Health commissioner, John Dreyzehner, is scheduled to appear.

The governor’s full letter is below:

Download (PDF, 110KB)

Secretary of State Anticipates 2016 Retention Election for Justice Wade’s SCOTN Replacement

State elections officials and the attorney general’s office spent last week keeping mum about uncertainty over the timing of retention elections for Supreme Court judges in wake of Tennessee voters ratifying Amendment 2 last year.

But the Tennessee secretary of state’s office — which oversees the division of elections — appears now to have concluded that the successor to retiring Supreme Court Justice Gary Wade should first face a retention election next August, and not in 2022, as some have speculated.

“Per Tenn. Const. Article VII Section 5 there will be a retention election in 2016 for Justice Wade’s vacancy,” Adam Ghassemi, director of communications for Secretary of State Tre Hargett, wrote in an email to TNReport Friday evening.

The provision of the state Constitution cited in Ghassemi’s statement declares in part that should an unscheduled judicial opening arise, “such vacancy shall be filled at the next biennial election recurring more than thirty days after the vacancy occurs.”

The “next biennial election” for Tennessee judges is next August.

Justice Wade, who won a new eight-year term to the Supreme Court last August, unexpectedly announced his retirement from the bench on July 24.

Wade’s departure, effective Sept. 8, will take effect approximately seven years ahead of schedule, and it will create the first vacancy on the five-member Supreme Court since voters endorsed new judicial-selection procedures in November.

Those revisions were contained in the Amendment 2 referendum, which won approval from 61 percent of  the ballot-question’s vote during the 2014 general election.

Amendment 2 eliminated a pronouncement in the Tennessee Constitution declaring, “The judges of the Supreme Court shall be elected by the qualified voters of the state.”

In place of that sentence, which had been part of the state’s guiding document since 1870, Amendment 2 established a new system in which the governor picks the judges to serve on appeals courts and the Supreme Court. Those appointments are then subject to an as yet unestablished legislative confirmation process and, later, retention elections in which voters choose to keep or reject the judges.

However, the portion of the Tennessee Constitution cited by the secretary of state’s office on Friday, Article VII, was in fact not altered by Amendment 2.

Article VII addresses “State and County Officers.” Amendment 2 rewrote only Section 3 of Article VI, which is titled, “Judicial Department.”

Amendment 2 modified the Tennessee Constitution so that it now declares that the state’s most powerful judges “shall be appointed for a full term or to fill a vacancy by and at the discretion of the governor.”

In wake of Wade’s retirement announcement, Gov. Bill Haslam’s administration indicated confusion over whether their new Supreme Court appointee will stand for a retention vote in August 2016 — the next regularly scheduled judicial election — or in 2022, when Wade’s full term was scheduled to expire.

The Memphis Commercial Appeal reported last week that Haslam’s office had determined that the timing for Wade’s replacement to face retention election is “unclear at this time.”

“We anticipate the General Assembly will address the question when they reconvene early next year,” the governor’s deputy director of communications told the Commercial Appeal.

Current Tennessee statutory code, which was in effect before passage of Amendment 2, requires judges to win retention within two years of being appointed to the court.

The new constitutional mechanisms contained in Amendment 2 were sold to voters under the promise that they would add “checks and balances” and provide “more clarity” to the state’s process for selecting appeals and high-court judges.

Wade Departure Sets in Motion New Procedures for Picking Supreme Court Judges

Just a year after mounting a zealous and richly financed campaign to keep his seat on the Tennessee Supreme Court, Justice Gary Wade announced Friday that he’s retiring from the bench later this summer.

The 67-year-old judge told the Knoxville News Sentinel over the weekend, “I just don’t have as much energy as I used to have.” Wade may take a job as dean of Knoxville’s John J. Duncan Jr. School of Law at Lincoln Memorial University, according to the story.

Wade, who from 2012-2014 served as chief justice of the state’s high court, said last week in a statement through the Administrative Office of the Courts that his resignation will take effect Sept. 8. His current term began Sept. 1, 2014 and was scheduled to expire in 2022. The release offered no reason for Justice Wade’s decision to step down, although a spokeswoman for the court told the Chattanooga Times Free Press, “He just said he thinks it’s time.”

Democrats Likely Losing Control of 5-Member Court

Wade and two fellow Tennessee Supreme Court justices, Sharon Lee and Cornelia Clark, won fresh eight-year terms in retention elections last August after surviving an ouster attempt funded heavily by Lt. Gov. Ron Ramsey’s political action committee.

The three justices, all appointed by Democratic Gov. Phil Bredesen, ran a “coordinated campaign” to retain their seats. They raised more than a million dollars in the effort — much of it from the state’s legal community and the Tennessee Democratic Party.

In a statement on Facebook Friday, Ramsey congratulated Justice Wade on his retirement and called him “a good friend and a formidable opponent.”

“I look forward to this historic opportunity to give Tennessee its first ever Republican Supreme Court majority,” wrote Ramsey.

Wade’s retirement will set in motion an as-yet unsettled and untested new process for selecting and approving new appellate-level judges that was ratified by Tennessee voters last year.

Voters Gave Power to Governor  

Driven by a massive campaign effort bankrolled by a broad coalition of powerful special interests and backed by a bipartisan confederation of political establishment elites, “Amendment 2” won statewide approval in November with about 61 percent of the electorate in favor. Very little was comparatively raised in opposition.

Although Tennessee voters weren’t expressly told so on the ballot, Amendment 2 blotted out a nettlesome sentence that had been part of the state’s foundational government document since 1870: “The judges of the Supreme Court shall be elected by the qualified voters of the state.”

Despite that language, the state’s most powerful politicians and judges had for decades prior to Amendment 2’s passage denied that traditionally understood definitions of elections were ever constitutionally mandated for judges in Tennessee. They opted instead to codify a “merit selection” and “retention election” plan similar to that outlined in Amendment 2.

The judicial appointment process now in place is not much different than what’s been used since 2009: The governor will appoint a replacement for Justice Wade from a slate of suggested names sent to him from a “Council for Judicial Appointments.” The council will have 60 days to make its recommendations after formally being requested to do so by the governor.

Confirmation Biases

Once the governor announces his choice to serve on the court, the state’s constitution as altered by Amendment 2 now directs that a legislative confirmation process take place when the General Assembly meets again in January.

There’s a small problem with that, though. The actual procedure by which confirmation is to be deliberated upon, or the appointee rejected, hasn’t yet been established by the General Assembly.

The GOP supermajority-controlled Legislature failed this past session to agree upon or approve a procedure for confirming or potentially rejecting a judicial nominee sent to them by the governor.

Senate Judiciary Committee Chairman Brian Kelsey, the Shelby County Republican who authored Amendment 2, also sponsored a bill this past session outlining a proposed confirmation process for the General Assembly.

But that legislation stalled on the final day of regular legislative business, April 22, when the 99-member House and 33-member Senate couldn’t stop squabbling over how to weight the votes of their members in such a process.

In his “2015 Yearly Review,” Kelsey wrote that the confirmation legislation “awaits final reconciliation next year.”

Appearances of Accountability

The new legislative approval-or-rejection component was in fact a key selling point Amendment 2 backers promoted to convince voters the constitutional rewrite included appropriate checks and balances, as well as “greater clarity and accountability,” in the judicial selection process.

Sen. Kelsey dubbed Amendment 2 a “Founding Fathers Plus” plan when he first started floating it a few years ago. He said it was designed to mimic and improve upon the U.S. federal government’s judicial selection system.

“It is called the ‘plus’ plan because the Senate plus the House are included in confirmation, as opposed to the federal plan, in which confirmation is limited to the Senate,” Kelsey wrote in a 2013 op-ed.

The “Yes on 2” campaign last year played up the lawmaker-oversight aspect of the amendment as well. Amendment 2 was written to introduce “a new layer of accountability by having our elected representatives in the legislature confirm or reject the Governor’s appointees,” the Yes on 2 campaign proclaimed.

But Amendment 2 also contained a provision, now enshrined in the Tennessee Constitution, enabling judges to circumvent legislative confirmation if lawmakers can’t agree on a nominee or a way to approve or deny a governor’s selection — as happened this last session.

“Confirmation by default occurs if the Legislature fails to reject an appointee within sixty calendar days of either the date of appointment, if made during the annual legislative session, or the convening date of the next annual legislative session, if made out of session,” the Tennessee Constitution presently declares.

20150726_130100That matter was addressed earlier this year by Tennessee Attorney General Herb Slatery, who wrote that the governor can appoint judges as he sees fit, and if the General Assembly can’t speak with a unified voice then there’s nothing they can do to stop judges from taking a seat on the bench.

“(T)he Legislature may reject an appointee only by taking affirmative action to do so within the specified time limit. Confirmation, on the other hand, may be by affirmative action or by inaction,” Slatery wrote in a March 27 opinion in response to a query by Jon Lundberg, R-Bristol, the Tennessee House’s sponsor of Amendment 2.

Slatery concluded, “The Legislature may act affirmatively to confirm, but if it does not act within the specified time limits either to confirm or reject, the appointee is confirmed by default.”

Under current state law, the new member of the Tennessee Supreme Court Haslam appoints will presumably stand for retention election in August 2016, along with Justices Holly Kirby and Jeff Bivins, who Haslam appointed last year.

Amendment 2 declared that after judges are appointed and confirmed, they “shall be elected in a retention election by the qualified voters of the state.”

The General Assembly hasn’t yet approved statutory language regarding judicial retention elections since passage of Amendment 2. But the Kelsey legislation, Senate Bill 1, would require — as is the case under current law — that judges appointed to fill a vacancy “face a retention election…at the next regular August election following confirmation, and the retention election shall be for the remainder of the eight-year term.”

TNReport is awaiting clarification from the Tennessee secretary of state’s office on the timing of the new Supreme  Court appointee’s retention election.

Gov. Haslam in a statement Friday thanked Wade “for his years of service to Tennessee as a dedicated member of the judiciary.”

“I greatly appreciate Gary’s commitment to justice and his love for our state,” the governor said. “Tennessee will miss his service on the Supreme Court, and I am grateful for his good work.”

 

Obamacare Inflating Health Coverage Costs, says TN Insurance Commissioner

The woman in charge of overseeing and regulating Tennessee’s insurance industry took umbrage at some of President Barack Obama’s remarks in Nashville recently.

The president was speaking at a Davidson County grade school where he delivered a glowing appraisal of his signature health care law Wednesday on the heels of the King v. Burwell decision in his administration’s favor last week. Obama encouraged the Tennessee public to keep a close eye on Insurance and Commerce Commissioner Julie Mix McPeak and her subordinates to make sure they dutifully impose health-coverage price controls on insurance companies operating in the state under the federal health insurance exchange.

“I think the key for Tennessee is just making sure that the insurance commissioner does their job in not just passively reviewing the rates, but really asking, ‘OK, what is it that you are looking for here? Why would you need very high premiums?’,” said the president. “And my expectation is that they’ll come in significantly lower than what’s being requested.”

President Obama instructed the audience to “stay on your insurance commissioner — pay attention to what they’re doing.”

In a statement issued Thursday, McPeak defended her office’s process for reviewing requests from companies to raise premiums on consumers in wake of passage of the Affordable Care Act.

A press release from McPeak’s office declared that “our seasoned team of insurance regulators are not passively reviewing insurance rates for the coming year as the President suggested.”

“The Commissioner and our team have always taken the job of protecting Tennessee consumers seriously and are unafraid to ask hard questions of the companies we regulate in order to better protect consumers,” the release stated.

All requests for premium hikes are analyzed “in accordance with statutes, regulations and accepted actuarial guidelines for completeness and actuarial justification,” the statement continued.

President Obama’s comments at the ACA promotional event came in response to a question from an audience member about managing the rising cost of premiums in Tennessee.

Obama offered that if state commissioners perform their due diligence when requiring companies to justify premium-increase requests, then oftentimes a company’s plea to raise rates on policyholders will be refused.

“Last year there were a number of states where the insurance companies came in requesting significant spikes in premiums,” said President Obama. “And there were a lot stories in the newspaper, just like there are this year, about (how) premiums are skyrocketing and this is going to be terrible and all that. When all the dust settled and the commissioners who were empowered to review these rates forced insurance companies to justify what they were seeking, what you discovered was, is that the rates actually didn’t go up as much as people thought.”

Just a week ago, on the eve of the Suprme Court’s  King v. Burwell decision, Commissioner McPeak testified before a subcommittee of the U.S. House Ways and Means Committee about upward pressures on monthly premiums.

“The ACA and its implementation by HHS has challenged state regulators and carriers by creating and continuing consistent uncertainty,” McPeak said in a prepared statement on June 24. “Uncertainty in the business of risk nearly always drives up costs and/or lessens competition. In the case of the ACA, I think it has done both.”

McPeak told members of Congress that insurance providers in Tennessee are requesting permission to inflate premiums in 2016 by anywhere from less than one percent to more than 36 percent. Her office has until August to make determinations as to what the state will allow.

“Tennessee had a competitive marketplace before the ACA and that marketplace remains competitive today,” McPeak told the subcommittee. “Market competition, in part, gave Tennessee some of the lowest priced (federally facilitated marketplace) products in the country.”

“Having a competitive market, however, does not isolate Tennesseans from seeing significant rate increases over the next few years,” she added.

McPeak, who Gov. Bill Haslam appointed to her current post in 2011, said insurance companies are having to pay out more in claims as more people access medical care. Blue Cross Blue Shield of Tennessee, the state’s largest insurance carrier on the federal exchange, claimed “a medical-loss ratio of well over 100 percent” in 2014, she said.

“To put that in perspective, for every $1 in premium received, the company paid out over $1 in claims, operating at a net loss – not including administrative costs of the company,” said McPeak.

“The ACA’s strict underwriting and business requirements have left carriers with few options to consider to maintain or reduce costs,” she said.

In summing up her remarks, McPeak said, “We continue to review policy forms and rates for next year but we anticipate that Tennessee consumers will see increased insurance costs in 2016.”

Obama Addresses ACA Backers in Nashville

Fresh off winning a high-court declaration that his administration can expand the Affordable Care Act beyond the express wording of the law, President Obama stopped off in Nashville to tout the controversial initiative.

“There are a whole host of things that fall under the Affordable Care Act that are benefitting 100 million, 150 million people,” Obama told a crowd of supporters at Taylor Stratton Elementary School. “They just may not be aware of it.  But what it’s done is it’s made health care stronger, more secure, and more reliable in America.”

“The good news is that, contrary to some of the expectations, not only has the law worked better than we expected, not only are 16 million people now getting health insurance that didn’t have it before, not only do we now have the lowest uninsured rate since we started tracking people and how much health insurance they had, but it’s actually ended up costing less than people expected,” the president said.

“And health care costs have been held — the inflation on health care costs have actually proved to be the lowest — since the Affordable Care Act passed — in the last 50 years. So we’re actually seeing less health care inflation,” he added.

Topping the president’s agenda, in addition to talking up the 2010 health reform package, was to press for the state to expand government-financed health care coverage for lower income Tennesseans.

“I think because of politics, not all states have taken advantage of the options that are out there,” he said. “Our hope is that more of them do.”

The Volunteer State was one of 22 states that have refused to grow their Medicaid populations after a 2012 U.S. Supreme Court decision declared that the administration and the Democratically controlled Congress that passed Obamacare had unconstitutionally attempted to coerce states into increasing the number of people receiving taxpayer-funded coverage.

Twice in the last six months, Republicans in the Legislature have rebuffed attempts by Gov. Bill Haslam’s proposal to expand Medicaid, dubbed “Insure Tennessee,” which he claims “won’t cost the state a dime.”

GOP leaders like Lt. Gov. Ron Ramsey of Blountville and House Speaker Beth Harwell of Nashville have expressed an unwillingness to give Insure Tennessee further consideration until after the 2016 election, when they hope a Republican president is elected who will give the states greater latitude to run their own Medicaid programs.

Obama was asked about Insure Tennessee by several in the audience.

One of those was state Rep. Brenda Gilmore, a Nashville Democrat, who solicited advice from the president for how to encourage Gov. Haslam, who did not attend the event, “to stay on the journey and to continue to find solutions to present Insure Tennessee and to bring some of our colleagues over on the other side so that we can take the politics out of it and help them to understand how important this is to the quality of life for Tennesseans.”

The president noted that each state finds itself in a unique situation with respect to political dynamics, and suggested tactical plotting is best be left to homegrown “experts” like Democratic U.S. Rep. Jim Cooper of Nashville.

“But here’s the one thing I do know, is that elected officials respond to public opinion,” said Obama. He added, “If ordinary folks feel it’s important, then usually elected officials start responding.”

The president, who managed to speak for more than an hour without taking any critical questioning in a state where his popularity tends to be dismal, said “one of the challenges that we’ve had throughout this fight has been that there’s been a lot of misinformation out there.”

Obama also needled conservatives for, in his estimation, seemingly having reversed themselves into opposing ACA-style policies they once endorsed, like forcing people by law to purchase subsidized health coverage.

“People tend to forget that the Affordable Care Act model, with health care exchanges and buying on the — in the marketplace, and getting subsidies from the federal government — that was originally a model that was embraced by Republicans before I embraced it,” said Obama. “It’s the model that Mitt Romney signed into law in Massachusetts. It’s the model that conservative organizations like Heritage Foundation thought were a good idea.”

The president also defended the so-called “individual mandate,” saying that the ACA’s prohibition against insurance companies rejecting coverage applicants on the basis of their having preexisting medical conditions demands a corollary governmental decree that everyone purchase health insurance.

“If somebody tells you we’re going to prohibit insurance companies from barring you from getting health insurance if you’ve got a preexisting condition, which is popular, but we’re going to allow people not to get health insurance if they don’t feel like it, then the truth is that doesn’t work,” Obama said. “And the reason it doesn’t work is, if you think about it, if you knew that the insurance company couldn’t prevent you from getting health insurance once you were sick, you wouldn’t pay all those premiums until you got sick. And then you’d go to your health insurance company and say, there’s a law you got to sell me health insurance — and you’d save a whole lot of money, but, of course, the whole insurance system would collapse — it wouldn’t work.”