Who Should Decide State Health Care Policy?

AB 531 Would Strip the Executive Branch of Its Authority Relating to Health Care Reform

We all learned in high school that American democracy succeeds by striking a balance between the power of the legislative, executive and judicial branches of government. However, in Wisconsin that balance was disrupted last year when almost all the authority for Medicaid and BadgerCare policy making was shifted to unelected officials in the Dept. of Health Services.  Now some legislators are proposing a bill that is at the opposite end of the spectrum because it would strip our state’s executive branch of its typical duties with respect to one particular area of health care policy – implementation of the federal health care reform law.

I can certainly understand how legislators would want to ensure that they have the authority to approve the development of a health care exchange in the state.  However, I think the proposed bill, AB 531, goes much too far in shifting executive branch authority to the legislature.  For example, the governor shouldn’t have to get the permission of the legislature every time he wants to allow an agency to accept federal funding (particularly when the legislature isn’t in session).  Also, the legislature already has the authority to review and suspend agencies’ administrative rules.  It’s going too far to preclude an agency from proposing a rule unless and until the legislature passes a law explicitly allowing it to be developed.

It’s hard to reconcile this legislation with the opposite sort of power shift a year ago, when the budget repair bill gave DHS sweeping authority to adopt policy changes relating to Medicaid and BadgerCare.  In fact, those changes can supersede state statutes, and DHS doesn’t have to follow the normal rule-making process that would enhance public participation and would allow the health committees in the legislature to review and object to the proposed policy changes.  

Considering that the Governor has already pledged not to proceed with any implementation of health care reform, at least until the Supreme Court determines the law’s constitutionality, it’s tempting to conclude that AB 531 is just symbolic; however, that isn’t necessarily the case.  If the Affordable Care Act (ACA) is upheld this summer, while legislators are busy with their campaigns, do lawmakers want to make it impossible for the Governor and DHS to take any of the federal funding that could be used by the state and local governments to implement the law of the land? 

And even if the entire ACA were found unconstitutional, would the approval of this complete shift of authority for implementing the law be a good precedent?  Does it make sense for the legislative branch to have all the authority relating to implementing a health care law, such as the ACA (even as the executive branch has almost all of the authority for determining Medicaid policy)? 

Of course, lawmakers aren’t the only ones who sometimes want to rewrite the policymaking process when certain political ends seem to justify the means.  Advocates often give them those ideas, and we’re all in this together.  Is it too naive to think that all of us ought to get behind a resumption of the policymaking practices of the past, when the protection of constitutional principles such as separation of powers trumped lawmakers’ (and advocates’) substantive and political priorities, rather than the other way around?   

Jon Peacock