I have blogged earlier about Missouri's Proposition E (passed in November by a 61.8% majority) and its implications for attempting to tie the hands of the governor on Exchange creation or Medicaid expansion. Today I want to take a look at Proposition E's implications for tying the hands of state government civil service employees as they attempt to comply with the parts of the ACA that require they do so — the parts not struck down by the ACA's trip to the Supreme Court.
Proposition E, you my recall, is the product of a dispute between the governor and various members of the Missouri legislature over the scope of gubernatorial administrative powers. Originally conceived of as a legislative bill, its origins appear to have been part of the plan of some Republican state senators to hault a hearing on health insurance Exchanges in September of 2011 and to keep the state Department of Insurance from accepting approximately $21 million in federal planning funds for a Missouri Exchange. Originally sponsored by Rob Schaaf in the state senate, the vaguely worded proposition made it to the ballot in November in 2012 but not without a some dispute over the ballot text, which I have also written about earlier.
Proposition E's language prohibits the governor from using the power of executive order to implement the ACA, requiring legislative or popular approval to do so, instead. Since the Missouri authority for gubernatorial executive orders that are designed to respond to federal programs and requirements is both constitutional and statutory, I remain confused about whether a constitutional amendment may be required to achieve this goal — what I call tying the governor's hands.
Nevertheless, neither the governor nor the state attorney general seem inclined to press the point. What interests me today is that Proposition E's expansive and vague language might also prohibit Missouri state agencies from cooperating with the federal government in federal Exchange creation. It may have just gotten a whole lot riskier to be a state civil servant in Missouri, given that Proposition E appears to attach liability for its violation to civil servants in their individual capacity.
My best estimate is that five states have placed — or attempted to place — these kinds of restriction on further compliance with the ACA, barring legislative approval. Whether Missouri, Montanta, New Hampshire, Utah, and Wyoming consider these restrictions to include the kind of dovetailing of pre-existing state operated Medicaid programs with the federal Exchange is an interesting question. These dovetailing provisions, after all, survived the ACA's trip to the Supreme Court intact.
This could get interesting.