Tuesday, May 07, 2013

Summing up Adams v. Beshear so far

Kentucky Governor Steve Beshear wants to win his fight for assuming the ObamaCare unfunded mandate without addressing funding or mandates.

We should not let him do it.

In open court next Monday, Beshear's lawyers will claim mere taxpayers can't stop his recklessness because no one can demonstrate "prejudice to their rights as taxpayers or a loss to the Commonwealth." But that just isn't true.

The Kentucky Health Benefit Exchange will be funded "from revenues generated by the Exchange" according to Beshear's executive order creating said exchange. That means starting October 1, 2013 Kentuckians will start paying money to buy health insurance that they haven't had to pay before. This change was created without legislative action of any kind. That violates Sections 27, 28 and 230 of the Kentucky Constitution.

By itself, this action violates the rights of taxpayers to not have their pockets picked without legislation first being properly enacted. If that isn't prejudicial to their rights, what is?

Worse, the Exchange executive director told the Associated Press in January that tobacco settlement funds currently set to go elsewhere would be re-directed toward Exchange expenses. These funds could theoretically be appropriated in the next budget when federal funds run out, but one would have to expect ObamaCare to suddenly not be politically poisonous for that to happen. Fat chance.

Further, "losses to the Commonwealth" have already begun with the accrual of pension benefits for Exchange employees in one of the worst funded state retirement systems in the nation. Those losses are not speculative, nor are the inevitable cost overruns in the exchange that will fall in the next budget biennium, but can only be prevented by stopping the Governor in this one.

The issue of timing is also critical to the Governor's motion to dismiss to be heard on May 13. If all the harm is only potential harm in the next budget cycle, then he might have a point. But that is not the case. Despite his insistence that there are no new taxes in the Exchange, the truth is that new insurance taxes will be charged to consumers starting this October 1. The Exchange executive director has said at different times that operational costs would be met solely through a redirected existing insurance tax or through a combination of a new exchange tax and redirected tobacco settlement funds or no taxes whatsoever -- his current, not at all believable story.

Governor Beshear has much more work to do to make the case for the Kentucky Health Benefit Exchange. The legislature must hold him accountable, as must the courts and taxpayers. The Constitution already has.