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

Nashville Democrat’s trial balloon to circumvent Legislature on ‘Insure Tennessee’ deflated by state government’s top lawyers

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.

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