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.