A superior court judge could soon determine whether the LePage administration can continue delaying implementation of a law designed to provide health coverage for roughly 70,000 low-income Mainers.
Judge Michaela Murphy heard arguments Thursday in a lawsuit brought by five would-be recipients of Medicaid expansion and the anti-poverty group that helped convince voters to approve the law last year. Murphy will have to decide if she can force the LePage administration to setup Medicaid expansion when the Legislature has been unable to fund it.
The hour-long arguments in Cumberland County Superior Court led to a key question: can the judicial branch compel the executive branch to setup the expansion of Medicaid when a political stalemate in the legislative branch is effectively blocking a law that voters decisively ratified last year?
Attorney Jamie Kilbreth, who is representing Maine Equal Justice Partners and five people who could receive coverage if Medicaid is expanded, thinks that it can.
Kilbreth told Judge Murphy that the LePage administration was using the legislative stalemate over funding to procedurally veto a voter-approved law.
"What this is all about is a backdoor attempt to do what the Constitution prohibits the governor from doing," he said. "The court should not enable that kind of behavior."
Kilbreth added that LePage has been vociferous opponent of Medicaid expansion, vetoing legislative proposals nearly a half dozen times after pitched battles in the Legislature. Kilbreth says the law voters approved in November is clear: Medicaid expansion is the law and the governor's administration has to implement it.
But attorney Patrick Strawbridge, representing the administration, says the voter-approved law is no different than law created by the Legislature but not funded, meaning that until the money is appropriated, it cannot move forward.
"Once there's an appropriation, it will be implemented and the governor has said as much and the commissioner has relied upon that statement,” Strawbridge said. “No one is disputing that it has to be implemented once there's an appropriation. But it's fundamental that an appropriation be necessary."
Strawbridge went on to argue that the court cannot force the LePage administration to implement the law. He said doing so would violate the separation of powers clause of the Constitution.
Murphy seemed skeptical. She said that while there are obviously three separate and independent branches of government, the executive branch cannot simply ignore the law because the the legislative branch can't – or won't – do its job.
The law is in effect, Murphy said. It's not a suggestion, it's the law.
"Right. We do not challenge the fact that it's the law. But it is not funded. And a law absent funding is not enforceable," Strawbridge responded.
Both sides appeared to agree that the lawsuit is the result of a political dispute. LePage set the stage for the conflict when he announced earlier this year that he would not approve any funding for Medicaid expansion that raised taxes, tapped the rainy day fund or uses one-time money.
That pretty much eliminated all funding possibilities, and it was also signal to House Republicans – who have repeatedly backed the governor's demands by standing with him on vetoes – to stand firm.
But supporters of Medicaid expansion say it does not matter. They point out that there is $140 million in unallocated funds that can be used at any time.
It will be up to Murphy to decide if she has the authority to force the administration to follow it. On Thursday she said she would make that determination very soon.
