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Mickelson Claims Medicaid Expansion Violates Single-Subject Rule

Stu Whitney’s report on Mark Vargo’s problematic declaration that the proposed initiative to repeal the state’s sales tax on food also applies to municipalities also contains this alarming one-liner from former Republican legislator and ongoing enemy of democracy G. Mark Mickelson threatening voter-approved Medicaid expansion with legal action:

Mickelson believes Amendment D could be challenged in court for violation of the “single subject” rule, a legal principle he helped get on the ballot in 2018 that was approved by voters [Stu Whitney, “Controversy Surrounds Plan to End Food Tax by Ballot Measure Rather Than Through Legislature,” South Dakota News Watch, 2022.11.16].


Whitney does not expand on Mickelson’s legal reasoning (which would be a hoot, since Mickelson’s Harvard Law-informed legal reasoning is often wrong), so we’re left wondering how G. Marky-Mick figures Amendment D embraces more than the single subject of expanding Medicaid in South Dakota.

Let’s review the text of Amendment D:

That Article XXI of the Constitution of South Dakota be amended by adding a NEW SECTION to read:

$10 Beginning July 1,2023, the State ofSouth Dakota shall provide Medicaid benefits to any person over eighteen and under sixty-five whose income is at or below one hundred thirty-three percent of the federal poverty level plus five percent of the federal poverty level for the applicable family size, as authorized by federal law as of January 1, 2021. Such person shall receive coverage that meets or exceeds the benchmark or benchmark-equivalent coverage requirements, as such terms are defined by federal law as of January l, 2021.

The State of South Dakota may not impose greater or additional burdens or restrictions on eligibility or enrollment standards, methodologies, or practices on any person eligible under this section than on any person otherwise eligible for Medicaid under South Dakota law.

No later than March 1, 2023, the Department of social Services shall submit all state plan amendments necessary to implement this section to the United States Department of Health and Human Services, Centers for Medicare and Medicaid Services.

The State of South Dakota shall take all actions necessary to maximize the federal financial medical assistance percentage in funding medical assistance pursuant to this section.

This section shall be broadly construed to accomplish its purposes and intents. If any provision in this section or the application thereof to any person or circumstance is held invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications of the section that can be given effect without the invalid or unconstitutional provision or application, and to this end the provisions of this section are severable [Amendment D, as approved for petition circulation 2021.07.02 and approved by voters 2022.11.08].

Amendment D addresses one subject: expanding Medicaid under the Affordable Care Act. Every action it mandates serves that single purpose. To assert that Amendment D embraces more than one subject will require the semantic contortions that make the single-subject rule “infinitely malleable” and thus a terrible legal standard for initiatives.

Mr. Mickelson, we invite you to try telling South Dakotans, in the press and in court, how Medicaid expansion is really multiple subjects and how South Dakota voters are thus not entitled to vote on and enact Medicaid expansion. If Mickelson or other democracy-hating Republicans try to make that argument in court, we may be able to countersue to throw out the oppressive single-subject rule as a word trick Republicans use to thwart the legislative power of the people.


  1. larry kurtz 2022-11-17 06:43

    $20 says Mr. Mickelson’s company is facing the labor shortage his political party created and would be forced to pay his workers living wages.

  2. 96Tears 2022-11-17 07:50

    I’m pretty sure that if his dad was alive today, he’d sock Mark in the jaw for being so dumb, wrong and heartless. This smells of special interests having found a Judas with a law degree and status among like-minded Republicans.

  3. O 2022-11-17 08:19

    It’s the cannabis argument agin. Most any legislation can be broken into separate elements that are distinct actions — even though each of those actions serve to enact the single intent of the act. My point then and still (that I believe is still how law is to be read, but the Supremes disagreed) is that reasonable people can FIND ways to both make legislation conform AND violate the single-subject rule, so deference must be given to the will of the people. Unless changes are literally a single line of text, the single-subject rule can ALWAYS be called into question. That means that thoughtful implementation of any idea will always be in conflict with that rule. Maybe that was the intent of the single-subject rule in the first place: like tax law, it was put in place to keep attorneys fully employed and common people always one-step removed from the process.

  4. All Mammal 2022-11-17 08:42

    Who the hell does the legislature and Duguaard n Rounds n em think they work for? Dirty, rotten scoundrels collect their pay mainly from poor people. And then turn around and deny them healthcare and access to affordable food. That is low. Like worm dookie.

  5. Donald Pay 2022-11-17 09:03

    O is exactly correct. Commonsense needs to be applied.

  6. Jake 2022-11-17 09:47

    Which one of our federal senators ran with the motto “South Dakota ‘Common Sense’??? Was he GOP?!

  7. ABC 2022-11-17 09:59

    Welfare pay to Dugaard and Noem. Arrogant anti people white light fascists now abandon;trump and find bigger badder fascist.

    Ignoring the will of the people is bad for democracy and worse for business. Rs are proud of paying 1830s wages?

    Democratic Party has a proud history of losing for 44 years.

    Can we make something better here? Doing is first. Complaining doesn’t do anything.

  8. O 2022-11-17 10:09

    Donald, then we are screwed!

  9. 96Tears 2022-11-17 10:40

    Question for bearcreekbat. The so-called state “single issue rule” appears to be the troll under the bridge to kill any constitutional amendment. It’s so ridiculous that it seems as if an amendment contains more than one word, it may become suspect of violation the single issue rule. The Medicaid issue should have been a slam dunk except for this wrecking bar (or we can get biblical here, flaming sword) that again has circumvented the will of the people in a free election.

    That just seems to be unconstitutional, at least in its application by sore losers and special interests. Is it?

  10. chris 2022-11-17 11:52

    …It’s such a good distortion, it’s such a sweet misrepresentation…

  11. O 2022-11-17 12:27

    P. Aitch, I am willing to wager that those highest costs did not purchase SD the best outcomes or access in the nation.

    Health care should be a right — not a commodity.

  12. Loren 2022-11-17 12:31

    There is not one thing the people of SD want that can’t be circumvented by a hot shot lawyer. I think 96 Tears is correct when he thinks more than one noun, one verb and possibly one adjective is “more than one subject.” Of course, GOP thinking is pretty basic and we wouldn’t want to confuse. @#$%^&*!

  13. bearcreekbat 2022-11-17 13:01

    96 tears, I agree with O’s analysis:

    . . . “reasonable people can FIND ways to both make legislation conform AND violate the single-subject rule, so deference must be given to the will of the people,”

    But as O also recognized, the SD Supreme Court majority apparently has discarded this legal standard. Without the standard, it would seem that most if not all initiated amendments should be declared unconstitutional, after all, as law school teaches prospective attorneys, there are almost always arguments to support each side of any controversy and a well trained lawyer should be able to identify and articulate a reasonable argument on both sides of virtually any issue. Given the Supreme Court decision on Amendment A, it seems hard to imagine any new initiated proposed constitutional amendment that would not “arguably” violate the same subject rule, which under the Court’s new test means that just about any such proposed amendment can be successfully challenged, including this Medicaid expansion.

    Even the “single subject” amendment seems to violate itself under the Supreme Court’s Amendment A decision. That provision in Article XIII, section 1 reads:

    A proposed amendment may amend one or more articles and related subject matter in other articles as necessary to accomplish the objectives of the amendment; however, no proposed amendment may embrace more than one subject.

    Using O’s analysis, it can be reasonably argued that this amendment covered the single subject of regulating “amendments,” in all their various forms and permutations, just like it was argued that Amendment A only covered the single subject of regulating cannabis (a/k/a marijuana ) in all its various forms and permutations.

    But continuing O’s analysis it also could be reasonably argued that regulation of each different form or type of amendment, as well as covering both the substance and form of an amendment, and cover bothing proposed amendment and those voted on a passed by voters (i.e. no longer merely “proposed”) created multiple subjects, similar to the SD Court’s conclusion that regulation of each different form or type of cannabis created multiple subjects. The list, therefore, of multiple subjects in the single subject amendment language could reasonably arguably include:

    (1) amending the substance of an article (subject 1);
    (2) amending an additional (“more than one”) article (subjects 2,3, 4, ad infinitum);
    (3) amending subject matter in other apparently undesignated related articles beyond the “additional articles” referenced in (2) (creating even more subjects);
    (3) regulating the generic form and content of an amendment (creating yet another subject);
    (4) implicitly covers not only “proposed” amendments, but those actually voted on and adopted by voters, such as Amendment A (yet even one more subject); and
    (5) possibly even arguably more subjects that someone more creative than I can come up with.

    And since the SD Supreme Court now discards reasonable argument in favor of a proposed amendment when it can identify a reasonable argument that there is more than a single subject, I don’t see how the current single subject restriction doesn’t violate itself, i.e. an “ouroboros” if you will!

  14. P. Aitch 2022-11-17 13:13

    Where y’all live law making is just a game. Winning a crooked game is without any reason to be proud. Shame and ridicule on South Dakota!

  15. Jake 2022-11-17 13:34

    Yes, P. Aitch, your post describes our past 40 some years of Republican dominance to a “T”!

  16. P. Aitch 2022-11-17 13:45

    Jake – It’s kinda crappy that the good people of SD have to wallow in the waste products of the majority.

  17. All Mammal 2022-11-17 15:26

    I, so very basic of me, would automatically assume that for any and everything to appear on the ballot, it would already pass all the tests for its legitimacy. Isn’t that what the whole Attorney General’s explanation is supposed to ensure? I admit I don’t know bumpkiss but what is the point of all the riggamorrow to get something printed on the ballot if it can’t pass the word test? Shouldn’t the AG and LRC assist in working out those kinks before any blood sweat and tears and fat stacks of greenbacks are put into the petitioning phase, let alone the election day voting phase? What a waste of government agency letterhead.

  18. Observer 2022-11-17 20:07

    “Under God the People Rule”

    …has been reduced to less than bumper sticker status.

  19. Mark Anderson 2022-11-17 21:59

    Gee, it’s impossible for me to attack Michelson. He’s a fellow Marxist. Even if Mark is his middle name. Somethings going on with all those Georges. Talking about single subjects with them would be problematic. What if they were from Georgia?

  20. M 2022-11-18 07:01

    The people need to repeal the insurance provided to lawmakers through our tax dollars. NO MORE INSURANCE FOR POLITICIANS

    In fact, I’m tired of excellent insurance for government employees and lousy Medicare for the disabled and elderly.

    Who doesn’t want ALL people to be healthy? Who doesn’t want a healthy economy? It’s like a death wish on the poor. I’m so sick of the haves denying lifesaving insurance to our own citizens and tired of reading some comments from the same people who are like this.

    I love this site, however I do skip over comments by Grudz and some of his pals because I find their condescending, off task chit chat between men to be offending, and they do not contribute anything worthwile.

    Thanks to the rest of you as I enjoy my morning coffee before running off to my less than niminum wage job for mature women who run circles around those men we wait on. Hunters are here so the tips are good. They’re from out of state and appreciate great service unlike the locals.

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