Cross-posted from the archived Media Trackers Ohio site.
The Ohio Supreme Court issued a decision on December 20 denying a request from 6 Ohio House members and 2 Right to Life groups to block Governor John Kasich’s Obamacare Medicaid expansion end-run around the state legislature.
“The relators fail in their quest because they have not adequately shown that the Controlling Board had a clear legal duty to follow the directives of the legislature when those directives are not expressed in the final, enrolled bill,” Chief Justice Maureen O’Connor wrote in a slip opinion.
Justice Paul Pfeifer and Justice William O’Neill concurred with O’Connor’s decision, while Justice Judith Lanzinger concurred in judgment only.
The interpretation of Ohio Revised Code (ORC) 127.17, which restricts the ability of the Ohio Controlling Board, was central to the complaint and to the court’s ruling.
ORC 127.17 states that “The controlling board shall take no action which does not carry out the legislative intent of the general assembly regarding program goals and levels of support of state agencies as expressed in the prevailing appropriation acts of the general assembly.”
The Kasich Administration and state attorneys argued that, upon line-item vetoing a provision of the biennial budget which forbade the Obamacare expansion, the governor gave himself the power to redefine Ohio’s Medicaid program as he sees fit.
Today, a majority of the Ohio Supreme Court’s 7 justices agreed.
“Under our Constitution, an act is not effective and in force, that is, it does not become law, until it is signed into law, or permitted to become law, by the governor,” O’Connor wrote, ruling in essence that the intent of the General Assembly was modified by Gov. Kasich’s line-item veto.
“But R.C. 127.17, as construed by relators, would operate as a statutory negation of the governor’s constitutional powers. The General Assembly would have the power to command the controlling board, in all cases, to disregard the governor’s veto in the implementation of appropriations,” O’Connor added.
“This interpretation is clearly contrary to the checks and balances that are critical to our constitutional democracy.”
“Finally we note that the Ohio Constitution provides the mechanism by which the General Assembly may override a veto: repass the legislation by a vote of three-fifths of the members of both houses,” O’Connor wrote.
The court’s decision means that Ohio’s governor can enact policy expressly opposed by the legislature, and can only be stopped by supermajorities in both the Ohio House and Ohio Senate.
That is exactly what Gov. Kasich did by expanding Medicaid as set forth in Obamacare and then turning to the Controlling Board to appropriate more than $2.5 billion in Obamacare funding.
The Controlling Board is led by a Kasich appointee, and Kasich’s Medicaid director warned the quasi-legislative body that failing to move Obamacare money to fund Kasich’s Medicaid expansion would bankrupt the program.
Ohio Supreme Court justices Terrence O’Donnell, Sharon Kennedy, and Judith French dissented with the majority’s December 20 decision — but all would have dismissed the complaint rather than denying the request.
In a dissenting opinion, Justice O’Donnell wrote that “having created the Controlling Board, the legislature can abolish it, or regulate its decision making, or override its decisions by legislative action.”
“The General Assembly has both the incentive to protect its prerogatives and the institutional mechanisms to do so,” O’Donnell added. “This case involves an impermissible judicial foray into the province of the legislature and raises a political question that is not justiciable and which we ought not to answer.”