A couple of drafter's notes from the non-partisan Legislative Reference Bureau obtained by The Capital Times warn that provisions in the budget repair bill affecting Medicaid could be taken to court on the grounds that they raise "potential constitutional issues regarding the separation of powers."
Advocates have attacked the measure for granting the Walker administration sweeping powers to revamp and even gut the state's public health programs without following the legislative processes, public vetting and state laws normally required. They worry these moves are designed to lay the groundwork for an assault on the state's Badgercare and other public health programs.
Whenever a bill is proposed, attorneys who draft the proposed new law may flag aspects of it that could prove problematic or even illegal.
A January 26 drafter's note warns that language in a draft of the bill, which gives the Department of Health Services the power to "promulgate rules to implement certain changes" in Medicaid programs, including changes in benefits, reimbursements, and eligibility, raise a potential constitutional issue regarding the separation of powers.
"Under the separation of powers doctrine," writes legislative attorney Tamara J. Dodge, "the Legislature cannot delegate its lawmaking function to another branch of government, in this case the executive branch."
A court may strike down the law if that balance is not maintained, she notes. "Some of the language in the request would allow the DHS to change any Medical Assistance law, for any reason, at any time, and potentially without notice or public hearing," she writes. "Aside from the practical problem that only DHS would know what the law is at any given time, this may create an impermissible delegation leading a court to invalidate the statute."
In a second drafter's note dated February 1, Dodge repeats her earlier concerns: "As I mentioned in my last drafter's note, this request raises potential constitutional issues regarding the separation of powers."
The memos were directed to Marta Skwarczek, a Department of Administration budget analyst.
Dodge also commented in the Feb. 1 memo that Skwarczek told her that the DHS legal counsel had requested emergency rule making provisions that would eliminate notice and publication requirements and leave the emergency rules in effect indefinitely, "without any requirement to make permanent rules and without any time limit, except that imposed by DHS, and with no indication in the statutes that the law has changed at the will of DHS."
Dodge goes on to say that she is "unsure whether this may raise other constitutional issues," and she suggests that the administration request a legal opinion from the legal departments of the Department of Health Services or the Department of Administration as to "the basis for the legality" of it.
Together, says Jon Peacock, research director of the Wisconsin Council on Children and Families, the drafters' notes add up to "a strong indictment against the sweeping delegation of legislative authority to an unelected administration official --- the Secretary of Health."
Criticism of the powers the Medicaid provisions would grant the administration are mounting, with advocacy groups sending out alerts to members and legislators reporting that their phones are ringing of the hook. "Our biggest concern is that this will allow broad sweeping policy changes to happen behind closed doors," says Lisa Pugh, public policy coordinator for Disability Rights Wisconsin. "It will take away the power of the Legislature and of the public."
Pugh says constituents are demanding the legislators not give up their oversight of state Medicaid programs, including SeniorCare and BadgerCare programs. "We want to weigh in on changes that affect our lives, and we want our legislators to listen to us and to represent us," she says.