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Republican Litigation Seeks a Slower Process for Pandemic Planning, Concentrating Power in a Handful of Legislators

May 4, 2020, by Jon Peacock

Wisconsin Is Second-to-Last State to Adjust Medicaid for the Pandemic

On April 20, Wisconsin became the 49th state to get federal approval for adjustments in Medicaid that strengthen the program’s role in combating the Coronavirus pandemic. By contrast, almost four-fifths of states had gotten similar federal authorization by the end of March. Our state’s slower timetable for getting a federal waiver during the health crisis is a manifestation of sweeping changes made by the Legislature to limit the authority of the Evers administration.

Starting shortly after Tony Evers won the November 2018 gubernatorial election, conservatives have been waging war on executive branch authority. That war has been conducted on many fronts, beginning with a “lame duck” session in December 2018 and most recently with several court cases challenging the governor’s authority relating to executive orders and budget vetoes.

Among those court cases is one being argued in the state Supreme Court this week that challenges the authority of the Department of Health Services (DHS) Secretary to issue a stay-at-home order lasting until May 26. If legislative leaders are successful in that lawsuit, Wisconsin could become the first state and perhaps only state that takes the step of overturning an emergency order designed to mitigate the spread of COVID-19.   

A ruling in favor of the Republican legislative leaders who initiated that litigation would force DHS to replace the emergency order with an emergency rule. The detailed rulemaking procedures laid out in the Wisconsin statutes would make the adoption of protections during a health emergency slower and more cumbersome. Those statutes also empower a single legislative committee, the Joint Committee for Review of Administrative Rules, to suspend any rule – potentially negating the pandemic safeguards put in place by the Evers administration.

Because that lawsuit is being fast-tracked, it is important to be aware of how other restrictions on the Evers administration’s power have hampered our state’s ability to respond to the current health crisis, and how the Court could give a small subset of legislators the ability to block the pandemic protections. Let’s start with some recent Medicaid changes in response to the health care crisis.

Our state got some good news two weeks ago when the Wisconsin Department of Health Services (DHS) won federal approval of a variety of changes that are making Medicaid a much stronger and more flexible tool for testing and treating people who may have been infected by the Coronavirus. However, the bad news is that it took Wisconsin several weeks longer than most other states to submit its proposed Medicaid changes to federal officials for approval. During a rapidly spreading pandemic, a delay of a couple weeks in making improvements in testing and treatment can have very serious consequences.

DHS submitted its waiver proposal on March 24 to the Legislature’s Joint Finance Committee for approval. However, the committee informed the department that Act 370 of 2018 requires that all Medicaid changes must be explicitly authorized by statute. That law radically changed the balance of power between the Legislature and the executive branch. It was rushed to passage during the December 2018 “lame duck session” despite the opposition of a broad coalition of health care providers, who argued that it might have unintended consequences. As a result of Act 370, the Wisconsin waiver was not approved until April 20, costing precious time to act to address the pandemic and save lives.

The changes adopted during the lame duck session are a complete reversal from the approach that the legislature took in 2011 during Governor Walker’s first year in office. The budget bill enacted that year granted the DHS Secretary unprecedented authority to make sweeping changes in Medicaid policy, even if those changes conflicted with state statutes or administrative rules. But after Evers was elected, the same legislators concluded that the role of the executive branch should be far more limited.  

Republican leaders argue that the Safer-at-Home order diminishes the power of the Legislature, but there are a number of significant flaws in that line of argument. For one thing, nothing is stopping the Legislature from debating and approving its own plan for keeping people safe during the health emergency, but they have failed to do so. Second, they could meet for the more limited purpose of repealing or narrowing the broad authority that Wisconsin statutes grant to the DHS Secretary during a health crisis. But instead of having the full Legislature consider that issue, a few legislators in leadership positions are asking the state Supreme Court to essentially rewrite that statute.

Another argument made in support of the lawsuit is the contention that the Legislature should have a larger role in policymaking during the emergency because legislators are “closer to the people” than the executive branch. A fundamental flaw in that argument about improving accountability to the electorate is that the outcome of the litigation sought by the plaintiffs would give a small number of legislators, the members of a single committee, the unilateral power to suspend safer-at-home policies adopted by emergency rule. In addition, the process for initiating the lawsuit denied most legislators a role in deciding whether to try to curtail the authority of the DHS Secretary.  

A Supreme Court ruling requiring the Safer-at-Home order ruling to be adopted by rule would be similar to Act 370 in the sense that it would very significantly weaken the ability of the executive branch to respond quickly and nimbly to a dire emergency. And it would also have the very unfortunate and undemocratic consequence of empowering a single legislative committee to block actions taken by DHS to protect state residents during an extreme health emergency.

Jon Peacock