Kentucky Gov. Matt Bevin (R) issued a highly unusual executive order on Tuesday that would strip health care from nearly half-a-million of his state’s poorest residents if courts strike down a series of dubiously legal changes Bevin plans to make to his state’s Medicaid system.
Last week, Centers for Medicare and Medicaid Services (CMS) administrator Seema Verma issued a guidance permitting states to cut of Medicaid coverage for many individuals unless their comply with a work requirement or a similar obligation. Currently, 80 percent of Medicaid beneficiaries work, and the vast majority of those who don’t are either ill, disabled, currently enrolled in school, or are working as unpaid caregivers.
Bevin followed up that announcement this week with a proposal to make 1.2 million Medicaid enrollees pay monthly premiums, while also imposing work, community service, or job training requirements on them. These changes are widely expected to be challenged in court as inconsistent with federal Medicaid law. The National Health Law Program, which is likely to spearhead litigation against Bevin’s proposed changes, estimates that those changes could cause “more than 95,000 low-income Kentuckians to lose health care coverage.”
Which brings us to Bevin’s executive order. The order, which Bevin filed on Friday, instructs state officials to “take necessary steps to terminate Kentucky’s Medicaid expansion” if any part of Bevin’s Medicaid plan is struck down in court, and that decision is upheld on appeals.
An estimated 480,000 Kentuckians benefit from the Medicaid expansion, which was enacted into law through the Affordable Care Act. So Bevin is essentially engaged in an act of extortion against judges and against any lawyers tempted to file suit against his proposed changes. They must either allow Bevin to strip health care from 95,000 people, or five times as many people will lose health coverage.
There is a colorable argument that Bevin’s tactic is illegal. In the post-Civil War case United States v. Klein, the Supreme Court warned that there are strict limits on Congress’ power to direct the Supreme Court to rule a certain way in an ongoing case. “It is the intention of the Constitution,” the Court warned, “that each of the great co-ordinate departments of the government — the Legislative, the Executive, and the Judicial — shall be, in its sphere, independent of the others.”
Bevin’s executive order amounts to a similar attack on judicial independence, because it essentially threatens a catastrophic consequence should the courts rule against him.
Similarly, Article VI of the Constitution provides that “this Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land.” Bevin’s act of extortion effectively denies this principle. If Bevin’s plans violate federal law, then federal law is supposed to be supreme, and Kentucky must bend to it. Bevin, however, hopes to weasel out of this consequence by threatening to harm poor people if he loses a lawsuit and then hoping this threat will coerce judges into ruling in his favor.
In any event, Bevin is playing with fire with his tactic of threatening to harm third parties if courts do not do his bidding. If Bevin can engage in extortion to strip health care from some of his states’ poorer residents, than other governors or a future Congress could deploy similar tactics.
The next Democratic Congress, for example, could pass a single-payer health plan, then discourage the Republican-controlled Supreme Court from striking it down by including a provision doubling taxes on upper-income earners if the health plan is declared unconstitutional.