When Gov. Steve Beshear filed his executive order creating the Kentucky Health Benefit Exchange last July, he claimed without credibility the "Constitution of the Commonwealth of Kentucky and KRS 12.028" gave him the authority to unilaterally establish the key portion of ObamaCare.
It is extremely clear that neither our foundational document nor the statute he cited provide Beshear with the power to permanently reorganize government and create a new bureaucracy, appropriate funds, raise taxes (or fees) or write new laws without legislative approval.
Then on May 2, 2013, Beshear claimed in a court filing that mere taxpayers could not question his actions because the taxes he created to meet the state's financial obligations in the exchange "plainly do not impose a tax." This claim was obviously plainly false, which he was forced to admit today:
Then Gov. Beshear spoke to CNHI reporter Ronnie Ellis, who asked him again about his authority to create the exchange. Beshear told him a Kentucky law allows him to "maximize" federal funds.
Assuming that in this latest move Gov. Beshear is referring to KRS 205.520(3), he is saying the Secretary of Health and Family Services is using her own authority and not his "to take advantage of all federal funds that may be available for medical assistance."
This would be an interesting move, essentially conceding the main point of the lawsuit but still trying to take an end run around the legislature to create the exchange. That would drop Gov. Beshear from the suit and make Secretary Audrey Haynes the focus as well as powers delegated to her which are unconstitutional and stupid.
I'd love to argue the merits of that point in court.
The state-run health benefit exchange is the mother of all unfunded mandates. To justify setting it up as a means to maximizing the receipt of federal funds is not only wrong-headed in this case, the authority wasn't the General Assembly's to give away. That authority belongs to the people and is protected by Section 230 of the Kentucky Constitution. If that is to be the new focus of the lawsuit, so be it.