Sen. Jim Hendren today released a new version of the amendment to implement the governor’s plan to pass the Medicaid expansion via a scheme using the line-item veto. The revision is an attempt to alleviate legal concerns about the governor’s approach. For those who haven’t been following the blog, here’s an explanation of the unwieldy line-item-veto strategy.
The new version of the amendment is much simpler. Instead of making a restriction on spending funds for the Medicaid expansion, it simply ends the program at the end of 2016. The reasoning here is that using the line-item veto on restrictive language could be constitutionally suspect. More on that in Max’s post here, but the point is there could possibly be a challenge (probably a weak one, but you never know) to using the line-item veto not on a line item that mandates spending but instead on language that limits a state agency’s spending or bars a state agency from doing something. The new language would attempt to solve this problem by simply ending the program rather than expressly restricting spending.
The new version of the amendment would also add a severability clause: “If any provisions of this act or the application of this act to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are declared to be severable.”
The key point here is that if there is a lawsuit over the line item veto, backers of “Arkansas Works” want to make sure that the appropriation stands if a single part of it (like the dummy amendment) is found unconstitutional. Note that arguably, ending the program is the sort of substantive language that you might think should be introduced via non-fiscal legislation (requiring two thirds approval) — thus the effort to mitigate against the possibility that the amendment itself is found unconstitutional via the severability clause. More details here.
Both of these two new features appear to be in the range of issues pushed by Democrats like Minority Leader Michael John Gray and Rep. Clarke Tucker.
“Democrats and attorneys pointed out that a provision like this is more defendable in court than a restrictive measure to prohibit funds than being spent,” Hendren said. “It strengthens the durability [against legal challenge]. The effect is the same.”
Hendren said that discussions were ongoing but he believed that the three senators among the Tea Party Ten going along with the governor’s line-item plan would be okay with the new version of the amendment. “I think it will be okay because the net effect is the same,” he said.
The revised amendment addressed the suggestions made by Democrats on the legal end, Gray said. “It definitely makes some in the caucus feel better about it,” he said. However, he added: “The legal concerns aren’t the only concerns.”