State and federal officials filed a court motion Monday to lift a temporary restraining order on North Carolina Governor Roy Cooper’s attempt to expand the state’s Medicaid program.
Soon after taking office, Cooper called for an expansion in Medicaid per the Affordable Care Act, which allows states to expand coverage and have the federal government cover 95 percent of the cost. But Republican legislators sued to prevent the change, and U.S. District Judge Louise Flanagan issued a two-week temporary restraining order during the weekend. The Cooper administration is now asking to allow the Medicaid expansion to proceed.
“There’s no question, if this was an honest or legal attempt to expand Obamacare, they would have no problem waiting four more days until President Donald J. Trump was sworn into office,” wrote Phil Berger, Republican president pro tempore of the state Senate, on Facebook in response to Cooper's request.
Medicaid has been an important part of Cooper's platform, because the program helps provide health care to families near the poverty line. The Chronicle spoke to several professors who also questioned the governor's unilateral action.
“Typically bills come from the legislature, funding comes from the legislature and the governor approves or doesn’t approve,” said Frank Sloan, J. Alexander McMahon professor of health policy and management. “There’s a case for saying that this isn’t the way to do it.”
The legislature has also argued that according to legislation passed in 2013, Cooper is prohibited from expanding Medicaid without congressional approval.
"No department, agency or institution of this State shall attempt to expand the Medicaid eligibility standards," the law reads, "unless directed to do so by the General Assembly."
Allison Rice, a clinical professor of law, agreed with this particular argument against Cooper's actions.
“There’s language in it that that clearly does say no one in state government can lift one finger toward expanding Medicaid unless this legislature approves,” she said. “So under that law, probably by its terms Cooper’s violated that.”
In response, Cooper has said that the legislation's obstruction impedes "the core executive authority" of his office, and thus violates principles of the "separation of powers" in constitutional law.
“Tax dollars already paid by North Carolinians are funding Medicaid expansion in other states, and we want to bring that money back home to work for us here,” Cooper contended late Monday. “North Carolina will miss out on more jobs and better healthcare without Medicaid expansion, and it’s frustrating and disappointing that we’re having to fight our own legislature in court to get it done.”
Even if the restraining order is lifted, Rice said this would not immediately bring the Medicaid expansion into effect.
“The legislature would have to appropriate the funds, etc., there are things they have to do, and even Cooper isn’t about to rush out over those,” she said. “Getting this approved doesn’t expand Medicaid, it’s just step one.”
Complicating Cooper's goals is opposition to the ACA by the Republican majorities in Congress and by Trump, who have all pledged to repeal and replace the health care law soon after he takes office Friday.
Sloan noted that repealing the ACA would not affect North Carolina Medicaid "given that we don't have an expansion already in place." But Rice added that preventing Cooper's attempts until the new administration takes power is an advantageous legal maneuver on Berger's part.
"[The Republicans] want to stall this until after Trump comes into office, because that will decrease the likelihood that the federal government will approve this plan,” she said.
What could actually happen if the ACA is repealed and not immediately replaced, Sloan said, was that private coverage could dramatically decline. He suggested that Republicans might not be able to weather the political storm from so many people losing insurance coverage unless an effective replacement is implemented as soon as possible.
In fact, Sloan predicted the ACA is actually here to stay—at least in some form, and despite Republican rhetoric against the legislation.
“A national repeal isn’t likely,” he said. “They’re probably going to have something that looks like Obamacare, but they won’t call it that.”
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