Shortly before the holiday the Ohio Supreme Court rejected a challenge to Governor John Kasich’s decision to accept Medicaid expansion under the PPACA. This was a controversial decision within the Governor’s party, and prompted a lawsuit. The plaintiffs, six state legislators and two anti-abortion groups, argued that the state could not accept Medicaid expansion without express legislative authorization. Under Ohio law, however, an entity called the Controlling Board may authorize state agencies to accept and spend federal funds, and the Controlling Board voted to approve the Medicaid expansion which, at least initially, is fully funded by the federal government. According to the Ohio Supreme Court, the Controlling Board could take this step.
Chief Justice Maureen O’Connor wrote the majority opinion in State ex rel. Cleveland Right to Life v. State of Ohio Controlling Board, joined by Justices Pfeifer and O’Neill. Justice O’Donnell, joined by Justices Kennedy and French, dissented on the grounds that the case presented a non-justiciable “political question” that was not fit for resolution by the courts. Justice Lanzinger concurred in the judgment without opinion. So while the case was decided 4-3 (or 3-1-3), not a single justice voted to invalidate Ohio’s acceptance of Medicaid expansion under the PPACA.
In my opinion, the Court reached the correct outcome, though I am torn on the rationale. Whether the case presented a non-justiciable political question is a close call. The dissent is correct that the state legislature retains “both the incentive to protect its prerogatives and the institutional mechanisms to do so.” Courts need not sully themselves by inserting themselves into intra-branch political disputes, particularly where individual rights are not at stake. Here, however, the controlling statute does seem to provide a sufficiently clear standard for resolving the case. The relevant statutory provision provides 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” (emphasis added). As the majority noted, nothing in the text of the relevant appropriations acts precludes the controlling board from expanding Medicaid. The legislature had tried to enact such language, but it was vetoed by the Governor and no effort was made to override this action. So, even if one assumes a majority of the legislature opposed Medicaid expansion (a debatable assumption), such legislative intent was not “expressed in the prevailing appropriation acts” as required under Ohio law. Given the posture of the case — those challenging the expansion were seeking a writ of mandamus — this was a relatively easy call on the merits. So whether or not this case presented a non-justiciable political question, the challenge to Ohio’s Medicaid expansion deserved to lose.