INTERVIEW: Idaho Falls attorney to challenge legality of Medicaid expansion

Listen to KID NewsRadio’s full interview with Bryan Smith

IDAHO FALLS, Idaho — The future of Medicaid expansion in Idaho might not be decided after all.

Bryan Smith, Idaho Falls attorney and a vice chairman of the Bonneville County Republican Party, is challenging the constitutionality of the voter initiative passed by Idaho voters, saying the language of the proposition doesn’t do enough to limit the power or authority of those tasked with implementing and executing the law. Smith is expected to file a challenge to the proposition targeting its’ constitutionality.

“The problem with Proposition 2 is that it is so broad that it gives discretion to the Department of Health Welfare,” Bryan Smith told KID NewsRadio. “It does not give standards. It’s not definite. It’s not clear, and so if you have legislation that gives the executive branch unfettered authority, too broad discretion, it’s not guided, it’s not definite, it’s not directed, then it becomes unconstitutional.”

Smith said such language could put other departments and funding at risk of neglect or even decreased funding.

“Does this mean that the Department of Health and Welfare can say, ‘Well, listen, we know the law is that we’re supposed to fund education, but if we need to take money from education to make sure that we can get this state plan, we’ve got authorization not withstanding any provision of law,'” Smith said. “That is not direct, it is not limited. It is not a definite in scope.”

How the balance of power would actually play out, Smith said, is less of a concern though. Some would argue, he said, the Department of Health and Welfare would never exercise their authority in such drastic ways. But, he added, the very fact that they could is what brings the constitutionality of the now passed proposition into question.

“The issue is the initiative grants them that authority and because they have so broad authority, they are now leaving the realm of implementing the law to they’re able to set the standards, creating the law and that’s part of the problem,” Smith said.

Creating laws is a responsibility left to the legislative branch, who did not pass any Medicaid expansion measures during session. While the people of Idaho do have the right under the state’s constitution to supersede the House and the Senate in creating a law through proposition, Smith said Prop 2’s passage doesn’t mean the initiative meets the constitutional smell test.

“Just because the people pass an initiative doesn’t mean they can pass whatever they want,” Smith said. “For example, if they wanted to pass a law that says that, you know, women can’t vote. If there were more men than women, and for some reason men pass that, it still has to go through a constitutional test…So, you’re going to hear certainly over the next while about how this [challenge] is unpatriotic, it’s undemocratic. But, the truth is that if you pass legislation that is unconstitutional, it ought to be stricken. It doesn’t matter if it comes through an initiative or through the House and the Senate.”

Smith will file the challenge with the State of Idaho on November 20th.

You can view the full video interview with Bryan Smith below