The Medicaid expansion is still unconstitutional, though. Demonstrating that merely involves a somewhat different legal strategy.
While the failure of the executive order setting up the ObamaCare "exchange" revolves around neither Kentucky law nor the Constitution allowing any governor to write law, reorganize government, levy taxes and fees and spend money without legislative approval, there is a statute that appears to allow him to expand Medicaid.
The trick is that law is unconstitutional.
KRS 205.520 (3) states "it is the policy of the Commonwealth to take advantage of all federal funds
that may be available for medical assistance. To qualify for federal funds the secretary for health and family services may by regulation comply with any requirement that may be imposed or opportunity that may be presented by federal law."
First, this is incredibly stupid law. Federal money comes with strings attached, usually, and always with Obama. We are opening ourselves up to enormous unfunded mandates in brain-dead fashion with this provision on the books. It simply shouldn't be there.
With regard to the Constitution, though, KRS 205.520 (3) opens up a very interesting can of worms by creating practically limitless current and future appropriations with no legislative approval or oversight. The legal argument from the Governor would likely be that Medicaid expansion is an "essential function" of state government. Debating the efficacy of an expanded Medicaid in open court is long overdue and would be a fight well worth taking on.
