Gov. Jan Brewer wants lawmakers to give her permission to sue the federal government over the new health mandate.
Gubernatorial press aide Paul Senseman said Wednesday Brewer believes the law the president signed on Tuesday is an illegal and unfunded mandate on the state. She said Arizona will be forced to provide health care to residents it can no longer afford.
Beyond that, Senseman said the governor believes Congress exceeded its legal authority in requiring individuals to purchase health insurance from private companies or face a financial penalty.
“You’re invading an individual’s personal privacy in making their own decisions for themselves,” he said. “This is the first time in American history the federal government has, just to be a citizen of the United States, mandated the purchase of a product.”
Brewer’s move follows the decision Wednesday by Attorney General Terry Goddard not to join counterparts from 13 other states. They filed suit Tuesday challenging key provisions of the measure.
“Our lawyers agree with the overwhelming majority of constitutional scholars of both parties that the lawsuits have little merit and that participating in them would be a waste of scarce taxpayer dollars,” Goddard said.
And Goddard said even if the challengers — and Brewer — are right, there is no need for Arizona to join the lawsuit. He said the legal questions will be resolved through the lawsuit already filed by the other states.
Senseman said it is important for Arizona to add its voice to the fight.
The primary issue, Senseman said, is financial.
He said the governor has no problems with plans by the federal government to give Arizona more money beginning in 2014 to provide health care for the poor.
The federal government already picks up two-thirds of the cost now for the Arizona Health Care Cost Containment System, the state’s Medicaid program. It covers everyone below the federal poverty level, about $18,300 a year for a family of three. And the state gets three dollars for every dollar spent on the Kids Care program that provides nearly free health care for the children of those who earn too much to qualify for AHCCCS but are still considered “working poor.”
What she objects to, he said, is the requirement the state continue funding those programs at current levels if they want any future federal aid at all.
In fact, the new state budget Brewer signed earlier this month seeks to save $385 million by cutting 310,000 people from the AHCCCS rolls halfway through the fiscal year and eliminating the $18 million spent on the Kids Care program entirely, halting care for about 38,000 youngsters.
Senseman said that mandate is an illegal unfunded mandate.
Goddard, however, said there is no mandate: Arizona can withdraw from the Medicaid program entirely and not provide health care for anyone. Goddard stressed, though, he’s not suggesting that as an option: Even with the cuts there would still be close to a million Arizonans enrolled.
Nor does he believe the requirement to buy health insurance is beyond congressional authority. Goddard said Arizonans can choose not to purchase coverage, “but you will pay a penalty for that.”
He compared it to Social Security, the federally mandated retirement system first enacted in the 1930s.
Senseman countered that Social Security is a payroll tax for a government program and not a law telling people to buy private health insurance. He also said this is different than state laws requiring Arizonans to purchase liability insurance to operate motor vehicles, saying driving is a privilege.
Less clear is what Brewer and the Legislature are going to do — beyond filing suit — to comply with the federal law if it is not overturned.
That “maintenance of effort” provision requiring states to keep health programs at current levels has a carrot for states like Arizona which have had broader eligibility than required: It will get extra cash when the federal law takes effect in 2014. But Senseman said none of that helps finance the $4 billion the state would have to fund between now and 2014 to keep those programs running.
Senseman said there is discussion in Washington of follow-up legislation to help the state pay those costs in the interim.
“We are hopeful that Congress delivers on its promises,” he said. If the cash is delivered, then the state will restore both programs.
If they don’t, he said, an effort likely would be made to find the money out of state tax dollars so Arizona doesn’t forfeit future federal aid. Where those would come from, Senseman said, is not known.
Rep. Kyrsten Sinema, D-Phoenix, said there is no extra financial burden on the state. She said the federal law simply requires Arizona to keep funding the programs at current levels — the levels that Brewer said Arizona can no longer sustain.