Another day, another Constitutional crisis
Monday, Nov 19, 2007 - Posted by Rich Miller
* Here we go again…
Gov. Rod Blagojevich is moving ahead with a broad expansion of state-subsidized health care even though a legislative oversight panel told him “no” last week.
The governor’s administration has told state social service agencies that health coverage under the FamilyCare program is being expanded, an increase that could reach an estimated 147,000 people. Those state agencies already have begun signing up new participants despite the panel’s rejection of the plan.
Blagojevich’s move is only the latest in testing the extent of his executive authority against a legislature that has shot down his plans to expand health care, citing questions about its affordability.
* More…
On Tuesday, the legislature’s Joint Committee on Administrative Rules turned down the state Department of Healthcare and Family Services’ request for an emergency expansion of the Family Care program. The bipartisan panel of lawmakers was established in 1977 to oversee rules proposed for state programs. Its decisions generally are followed.
A spokeswoman for Gov. Rod Blagojevich contended Friday, however, that the committee does not have the ability to stop the Family Care expansion.
“JCAR’s role is merely advisory - it does not have the constitutional authority to suspend the regulation,” Abby Ottenhoff said in an e-mail.
She pointed to Gov. Jim Thompson’s amendatory veto of legislation that expanded JCAR’s authority in 1980. Giving the legislative committee the power to determine rules for agencies under the executive branch, Thompson wrote, “would violate the separation and delegation of power provisions of the Illinois Constitution.”
Although the legislature overrode Thompson’s veto, those constitutional concerns still exist, Ottenhoff said.
* Oof…
“Talk about the height of arrogance that this administration, that this manchild, has,” Burzynski said. “It just blows my mind.”
* Rep. John Fritchey offers up this analysis…
For the sake of argument, let’s assume that there is a legitimate question as to the authority of the Administration to take this path of action, and a legitimate question as to the authority of JCAR to block it. Common sense and decency (both increasingly dwindling commodities in our state capitol) would dictate that a binding legal determination be had BEFORE any attempts to enroll any new FamilyCare participants.
Failure to do so creates a situation in which patients may seek medical care believing that they have coverage only to later learn that they were mistaken (misled?). Health care providers are similarly jeopardized since they have no way of knowing whether a FamilyCare patient is a legitimate one, or one whose status is uncertain. Ironically, this could well lead to providers refusing to treat qualifying patients due to eligibility questions.
In light of this, for the Administration to proceed without clear authority in this critical arena is a reckless and irresponsible course of action. […]
What next? I can’t say for sure. But I would surmise that there exist at least two questions that are ripe for review. First, does JCAR have the authority to suspend the administrative rule at issue? Second, and tangentially related, does the Administration, through HFS, have the authority to undertake this action or does the expansion amount to an unauthorized attempt to expend unappropriated funds.
* Meanwhile, a similar JCAR controversy is developing over another issue. From an Illinois State Rifle Association press release…
Controversy has been raging for several weeks over a proposal promulgated by the Illinois State Police that would set the minimum age of issuance for Illinois Firearm Owner Identification (FOID) cards at 10 years of age. […]
Approval or denial of the proposed regulation is the responsibility of the Joint Committee on Administrative Rules (JCAR). As of the issuance of this press release, only a few days remain in the period during which the public may submit comments to JCAR regarding the proposal. Once the comment period expires, JCAR will consider all comments and will issue a ruling on the proposed age limit some time in the next several months.
Although adoption of such regulations is strictly within the purview of JCAR, an investigation conducted by the ISRA has revealed that Illinois State Police Director Larry Trent unilaterally established a minimum age for FOID applicants and began denying FOID cards to citizens less than 10 years of age as early as May 2007. […]
“Director Trent has taken it upon himself to nullify the authority of JCAR,” commented ISRA Executive Director, Richard Pearson. “Last May, he issued a declaration to the FOID division staff that directed the denial of FOID cards to applicants less than 10 years of age. Since that time, the State Police have used this bogus age limit as justification to deny over 200 applications. Of course, Trent’s edict has not stopped the State Police from cashing application fee checks.”
- He makes Ryan Look like a Saint - Monday, Nov 19, 07 @ 10:20 am:
The governor cited the JCAR rule that was the reason for the original 25 getting fired in the first place. He uses JCAR when it is beneficial to him, but then disregards it when JCAR goes against him.
- Johann in Illinois - Monday, Nov 19, 07 @ 10:25 am:
It really, really concerns me that Fritchey is willing to throw families out on the street to preserve the power of the bureaucracy.
No Mr. Fritchey….you figure out a way to get the families ON THE PROGRAM NOW, and then worry about the needs of bureaucracy later. These are families that need health coverage for god sakes.
Statesmanship, not gamesmanship, Representative.
- Common sense in Illinois - Monday, Nov 19, 07 @ 10:27 am:
Having spent 25-years in state agencies as a legislative liaison, challenging JCAR like this is something we were always loathe to do. If Rod Blagojevich really wants to test the legislative article of the Constitution this will certainly do it. But regardless of that outcome, the punishment the legislature can mete out in other ways can be absolutely breathtaking. Using the Thompson administration’s veto of a JCAR bill (later overridden) in the late 70’s? That was an entirely different issue and only someone with little touch with reality would even try to drudge that one up. If you’re in a state agency, you soon come to realize that JCAR, like the Auditor General, are necessary entities and can be used as a tool to make sure that everyone is on the same page. I wonder what’s next…have CMS ignore the Auditor General? Oh, wait…
- Anonymous - Monday, Nov 19, 07 @ 10:31 am:
If ISRA’s information is accurate, what Larry Trent has done is to implement “policy not in rule.” However, this situation is in the process of being corrected, as ISP has proposed to put the age limit policy into rule and appears to be following proper channels to do so. There is really no comparison to the HFS healthcare rule situation.
- GoBearsss - Monday, Nov 19, 07 @ 10:35 am:
Rich - I think you miss an important third option that I have been working through over the past week…
The administration believes the General Assembly already gave it the authority to do this. Thus, as someone pointed out on Fritchey’s blog - JCAR blocking this administrative change would essentially be a 12-member extra-constitutional body overruling both the General Assembly and the Executive Branch.
I can understand the constitutional crisis.
- Greg - Monday, Nov 19, 07 @ 10:36 am:
Johann,
You might want to re-check your definition of statesmanship. I think you’re looking for “hubris.”
- Mr. Wizard - Monday, Nov 19, 07 @ 10:36 am:
“Common sense” is right, but I assume the attempt here is to force someone to sue the Dept. and frame the issue like “Johann” does above. Who will sue?
- Cassandra - Monday, Nov 19, 07 @ 10:39 am:
I’m with Johann.
Health trumps pretty much everything. It certainly trumps huge legislator raises…oops, too late….
plush no-bid contracts and zillions of patronage jobs worth $100k and up.
Besides, this is probably a short-term problem. Virtually all of the national prez candidates are talking above some form of national health coverage..most likely NOT single payer. Illinois likely would merely be anticipating what will soon be a national requirement.
- Northside Bunker - Monday, Nov 19, 07 @ 10:45 am:
Another biscuit for the masses from the boy king.
- DumberThanYouThink - Monday, Nov 19, 07 @ 10:45 am:
This week’s “proof”
Blaggo will wiggle those big floppy ears and call a special session for next Wednesday and Thursday
- Common sense in Illinois - Monday, Nov 19, 07 @ 10:47 am:
“Johann” makes an interesting point, but one that actually points out the need for “balance of powers” instead of “divine right”. In fact, NOTE TO RICH–you might want to link this (http://www.chicagotribune.com/news/opinion/c
hi-oped1119mccarronnov19,0,2127342.story)…
There is a very good John McCarron column from the Tribune that goes much further to what “Johann” is trying to accomplish than the governor’s questionable antics.
- He makes Ryan Look like a Saint - Monday, Nov 19, 07 @ 10:51 am:
Cassandra, I agree the importance of health care, but we must have the money to pay for it, including the increases yearly. Look at the effects of Medicare on the State. If it looks like the Feds are going to do this, then lets let them take the lead.
I am not even going to bring up the precidence this is setting for the Governor. He is over using his power.
- Anonymous - Monday, Nov 19, 07 @ 10:51 am:
Johann, if I remember correctly, JCAR told HFS last week that it would have no problem with HFS filing an emergency rule just to cover the 15,000 to 20,000 people who are losing their SCHIP coverage, since that could be construed as a genuine emergency. (The expansion of health coverage to 150,000 people not currently covered could then go through the regular rulemaking process). However, HFS and the administration flatly refused to do that. So who’s throwing whom out on the street here?
- Ghost - Monday, Nov 19, 07 @ 10:56 am:
if this is regarded as a “rule” under the Administartive Procedure Act, then is must go through JCAR. If somone moves to strike it donw as an unpomulgated rule they would be able to collect full attorney fees for doing so. So people ave questionable coverage, and some enterprising lawyer now has a jewel of a billing opportunity.
- Budget Watcher - Monday, Nov 19, 07 @ 10:58 am:
Healthcare, equitable schools, investment in infra-structure, investment in public transit, and the list goes on and on. The challenge isn’t what, but rather how do we pay for these things. Given finite resources, the Governor AND the General Assembly have an obligation to prioritize and budget within the state’s means. It’s incredibly irresponsible to unilaterally announce new programs without corresponding revenues.
- Cassandra - Monday, Nov 19, 07 @ 11:10 am:
He makes Ryan…
It’s all a matter of priorities, no matter what it costs. Medicare or huge contracts to Halliburton and Blackwater? Medicare or Iraq. Katrina rebuild or earmarks/Bridges to Nowhere? Access to affordable insurance for all Illinoisians or hundreds of millions in no-bid contracts to our Illinois Democratic political leaders and their friends and “contributors.”
The money is there. It’s how you apportion it.
Instead of giving huge amounts of it to the wealthier classes already, we middle class taxpayers need to start re-directing it to ourselves.The poor already have full health insurance coverage, I would note. Free.
- Greg - Monday, Nov 19, 07 @ 11:16 am:
Cassandra,
I would argue that your objection is to transfers to the corrupt or connected, rather than simply to the “wealthy.” If you substituted other socioeconomic nouns for what you write about the wealthy, many of your comments would be quite objectionable.
- Fan of the Game - Monday, Nov 19, 07 @ 11:19 am:
Budget Watcher is correct. The state cannot pay for everything; therefore, it must prioritize what it can provide. It can provide for those systems, structures, and services that benefit all of society: roads, bridges, schools, prisons.
Health care affects individuals and should be the responsibility of the individual. The JCAR ruling should stand.
- RMW Stanford - Monday, Nov 19, 07 @ 11:22 am:
Jonnah,
Its not a matter of the needs of the bureaucracy, but the Constitutionality of the Governors actions and whether or not he has the ability to use money appropriated for other things to under take his pet project with out the approval of the law making body of the state.
- Little Egypt - Monday, Nov 19, 07 @ 12:02 pm:
I believe every physician in Illinois who takes any State Public Aid patient is watching this issue closely, at least their office managers are. Blago is thumbing his nose at JCAR and asking, er ordering, the State agency to begin signing up more people for this new health plan. The scenario I see developing is that even IF people brand new to the program can find a physician who will take them on as a new patient and provide whatever medical care is needed, what will happen when this whole thing ends up in court, Blago is knocked down again, the plan is abandoned, and doctors are stuck with unpaid state bills. Will they go to the patients then and try to collect? We know that the salary cap is being raised to the point where some people SHOULD be able to afford private insurance but will opt for a much less costly plan administered through the State. It was so stated in an SJ-R article about a guy who was opting for the cheaper insurance so he could put his kids in private school. So what about those people who could afford to pay in the first place for their own insurance? Will the doctors now go to them to pay their own bill? I would be afraid of this program at the current time until these constitutional kinks are worked out, vewy vewy afrwaid.
- Rep. John Fritchey - Monday, Nov 19, 07 @ 12:07 pm:
Let me just chime in quickly to reiterate a point that I tried to make on my blog.
Regardless of the ultimate outcome of this issue, if the Administration felt that there was a question a to either its authority or that of JCAR, the responsible course of action would have been to obtain a declaratory judgment PRIOR to signing people up for health care that they may not be legally entitled to.
The course that they have taken unnecessarily puts both patients and providers in a dangerous legal limbo.
The gamesmanship has not been on the part of the Legislature Johann. The Governor has attempted to dictate every chapter of this year’s episodes.
- Walkenstik - Monday, Nov 19, 07 @ 1:01 pm:
Who’s left at HFS to argue the legality of this move? Not the Chief Counsel who tendered her resignation on Friday. Next.
- keep the powers separate - Monday, Nov 19, 07 @ 1:06 pm:
First, I’m no fan of the Governor and question the approach he is using to expand health care coverage. However, abuse of powers can be a two way street. JCAR-type operations have been ruled unconstitutional in several states. In the Michigan case, the state supreme court ruled that “requiring administrative agencies to obtain the approval of a joint committee of the legislature before enacting new administrative rules usurped the role of the executive branch in the law-making process, and thus violated enactment and presentment requirements, and the separation of powers provision.” (See: 462 Mich. 103, 611 N.W. 2nd 530). I think the same would be true in Illinois for many of the administrative rules that JCAR reviews. I wish former Governor Thompson had challenged JCAR’s legal authority when it was first created by the General Assembly.
- Rich Miller - Monday, Nov 19, 07 @ 1:09 pm:
Wisconsin’s JCAR was upheld, as well as one other, which escapes memory at the moment.
- Anonymous - Monday, Nov 19, 07 @ 1:22 pm:
JCAR ought to be unconstitutional! Hooray that this will soon be put to the test. The next item that should be tested - letting party committeeman usurp the role of voters in filling legislative vacancies. Also of dubious consitutionality, but nobody has ever had the brass to challenge it.
- kimsch - Monday, Nov 19, 07 @ 1:25 pm:
Thank you Mr. Fritchey. I understood what you meant, but it’s nice to have it clarified. Until the expansion is settled one way or the other, no one from the expanded area should be added to to the rolls. If they are, everybody loses.
- Rich Miller - Monday, Nov 19, 07 @ 1:27 pm:
Anonymous, have you ever even read the Constitution?
===Within thirty days after a (legislative) vacancy occurs, it shall be filled by appointment as provided by law.===
- Dollar USA - Monday, Nov 19, 07 @ 1:44 pm:
If a family is making $80,000 a year in Illinois and does not have health insurance they are making bad decisions. Keep rewarding people for making bad decisions. That is our gov at work as usual.
- More Courage - Monday, Nov 19, 07 @ 1:57 pm:
Regardless of the outcome, this just shows how bad next year is going to be. We might as well not even have budget talks. Just pass a budget, have the Governor veto what he doesn’t want and then work on the overrides.
It will just be interesting to see if that budget includes Medicaid lines like the current budget, or lines that are broken out by program, so it is clear how much the new FamilyCare coverage costs.
- Captain America - Monday, Nov 19, 07 @ 2:44 pm:
Although, I’m not a lawyer, common sense tells me the Governor is exceeding his constitutional executive authority by spending money and expanding eligibility so substantislly without authorization and appropriation by the legislature. Probably shouldn’t be too hard for someone to get a TRO, even if JCAR is also unconstitutional. I’m not sure who has the standing and the fortitude to sue the Governor/HFS for unconstitutional executive actions.
I support in pricipal the Governor’s desire to expand health care for the uninsured. But the Governor’s actions are beyond the pale since there isn’t enough money to mmet the Sate’s existing Medicaid/SCHIP obligations.
Blago is on the road to fiscal perdition. I am concerned that all health and humsn servicwe providers are going to end up paying the price for the Governor’s fiscal profligacy when the money runs out in the middle of the fiscal year. But for some reason the Governor seems to believe that crisis and choas work to his advantage.
- DC - Monday, Nov 19, 07 @ 3:38 pm:
I served as a JCAR analyst for nearly 3 years, working contentious and some not-so-contentious issues, but throughout the parade, there was one constant: the Illinois Administrative Procedures Act. It is a legal requirement to have policies in rule and I would aruge, based on my experience, that JCAR typically tends to provide the administration with the benefit of the doubt. Historically, there are not too many objections and even less prohibitions/suspensions. In other words, it takes a pretty sloppy or brazen effort on behalf of the executive branch to garner a “no” vote. Some agencies are much more adept at the rulemaking process because they understand the process and respect the law (regardless of whether they agree with it). Rep. Fritchey’s analysis is - without question- dead accurate.
It’s ironic/moronic to bring up Thompson’s veto but that’s all the Governor’s folks are good at doing - rehashing failed efforts of the past to leverage future failure. I’ll admit I didn’t go to Pepperdine Law School, but I do have a graduate degree and 9 years of direct experience working with the legislative process in Illinois. Never, in my 9 years, did I ever witness the pure disdain and spiteful, venomous ambition that this Governor displays. He has no boundaries and no shame. Perhaps he should dust off a “Prosser on Misfeasance” book from law school to remind himself of the definition… his growing list of actions certainly could lead one to make that connection.
JCAR may not be the most popular place to spend on a Tuesday morning once a month — but, until the LEGISLATURE amends the statute, the executive branch has a legal and constitutional obligation to uphold the laws of the State (maybe the Governor forgot that he placed his hand on a Bible and took an oath to do that).
- GoBearsss - Monday, Nov 19, 07 @ 3:50 pm:
Common sense does not equal constitutional muster.
Just because you FEEL it is wrong doesn’t make it so. Because, I think I just decided that I FEEL it is OK for the State to give me $10 million.
- As A Mom - Monday, Nov 19, 07 @ 3:52 pm:
It’s beyond his power to do this… In IL, we are lucky to have JCAR as a check and balance.
400 % of poverty level is unacceptable…Anyone making 82K should buy their own health insurance (as MANY have done for years.)
Why is everything so over the top ? Make good on promises vowed, show genuine caring leadership and stop the hasty decisions, bad choices and childish games.
- VanillaMan - Monday, Nov 19, 07 @ 3:53 pm:
Everyone needs to calm down. Just because Blagojevich is chewing up the rugs, doesn’t mean we have to join him, or even debate him at this point. We have a system in place that will eventually straighten him out, don’t we?
There is no health care emergency for families earning $80,000+ a year that cannot be handled in due time. Just because Blagojevich is calling it an emergency, doesn’t make it an emergency. This is his ruse.
He is nuts.
- DC - Monday, Nov 19, 07 @ 4:15 pm:
It’s one thing to chew up the rugs; it’s another thing to pee on the furniture. Eventually the behavior must be corrected or the animal needs to go. We’re used to the barking that comes out of the Governor’s office but at some point, the barking becomes a public nuisance and must be handled with the appropriate level of adult leadership and discipline.
I think he does this kind of juvenile stuff because it’s cheaper than doing a poll. He can have his hacks announce some new idea, measure public and media response, then blame inaction for the idea on the Speaker. Ultimately, it’s funny for about 2 seconds, then you realize the guy is totally serious…
- keep the powers separate - Monday, Nov 19, 07 @ 5:15 pm:
Rich,
The reason I pointed to the JCAR court case in Michigan is that its legislative oversight provisions seemed to be similar to the Illinois process. I believe the JCAR process in Wisconsin is different and may have a constitutional basis, but I could be wrong. I’m not an attorney. The Michigan supreme court did note that eight other states have considered the issue and ruled that legislative oversight of the executive branch rulemaking is unconstitutional.
- Mr. Wizard - Monday, Nov 19, 07 @ 6:38 pm:
Imo, JCAR is exactly the kind of “check and balance” the founders had in mind. Every law is scrutinized to make sure it’s implemented correctly - not that anybody seems to care anymore.
I don’t like Recall, but this guy clearly intends to bankrupt the state by Feb. and throw it into the GA’s hands. He’s completely irresponsible and refuses to govern.
- Anonymous - Monday, Nov 19, 07 @ 8:17 pm:
Yet another reason to vote for a Con Con! Include rules review as one of the GA’s powers in a revised constitution… so there is no doubt in the future.
- Cat - Monday, Nov 19, 07 @ 8:57 pm:
It seems that Blago is becoming increasingly irrational in his behavior, to the point that impeachment may be considered by the legislature. Perhaps it is the only way HE can think of to escape the madness of Illinois government!
- DC - Monday, Nov 19, 07 @ 9:01 pm:
One of the primary purposes of JCAR is to ensure that administrative rules are adopted in a manner consistent with legislative intent. By creating a system that does that at the beginning of the rules process, the legislature, through its representatives on JCAR, have an opportunity to mitigate legal risk to the state as a whole. By revising objectionable language in a proposed rule, JCAR provides an opportunity to the executive branch to amend a proposed rule before to ensure it is consistent with legislative intent, thus preventing unnecessary lawsuits.
Aside from Thompson, I’m not aware of other governors who have openly questioned or defied this process. Yet another example to add to Chucky’s legacy (like he should be proud of that).