Arizona can't avoid a supermajority voting requirement just because it wants to
Today we filed an amicus brief in a case challenging Arizona’s Medicaid expansion. Like California (and many other states), Arizona’s constitution requires that all taxes be passed by a supermajority vote—in this case, 2/3 of the legislature. The Medicaid expansion included a tax on hospitals in order to pay for the program, but the Arizona Legislature passed the measure using a simple majority vote. When a group of legislators and taxpayers sued Governor Jan Brewer, arguing that the law violated the constitutional supermajority requirement, the Governor responded first that the court could not hear the case because the Legislature had the sole authority to decide whether a supermajority vote was needed, and second that the legislators could not bring the lawsuit because they had not suffered any injury. The trial court agreed, and threw out the case. But the Court of Appeals overruled and held that the plaintiffs could sue to enforce the constitutional supermajority requirement.
In our brief, we urge the Arizona Supreme Court to affirm that holding. A legislative majority will always have an incentive to argue that a supermajority requirement does not apply. After all, those limitations are enacted in order to restrict the majority’s power. To allow the legislature to decide whether it has to comply with supermajority requirements would render those limits meaningless. We note several cases from California and other states where simple majorities have tried to subvert supermajority requirements.
In those cases, courts have ruled that legislators are the proper party to bring a lawsuit. When a majority flouts a supermajority requirement, they are effectively denying the other legislators their vote. This injury is uniquely suffered by legislators, unlike taxpayers or parties subject to the resulting law—who are harmed in other ways. Who better to vindicate that injury than the legislators themselves, who are both distinctly harmed and have the most familiarity with the facts of the case?
Moreover, there may not be any other party willing or able to bring a lawsuit. For example, taxes are often dispersed among several persons, meaning that any one individual may not be sufficiently incentivized to bring a lawsuit. And those who could sue because they are subject to the law—in this case, the hospitals—may not want to bring a lawsuit because they actually benefit from the law overall. Legislators must have the ability to sue because it’s likely that nobody else can, or will.
We also note the importance of supermajority requirements, which are gaining popularity across the country. By slowing down the legislative process and commanding a wider consensus, these requirements improve the quality of legislation. They help impede hasty political decisions made for short-term gain, and help ensure that laws are enacted for the broader good instead of special interest groups. They also protect the politically powerless, who encounter greater difficulty organizing to protect their own interests. Courts have to police supermajority requirements closely, not only because the legislature will always be prone to sidestepping them, but because they bolster democratic values.
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Biggs v. Betlatch
A bare majority of the Arizona state legislature passed a law requiring the director of the state Health Care Cost Containment System – which governs the state Medicaid program – to levy an “assessment” on hospitals to pay for Medicaid expansion. Legislators who opposed the law sued to invalidate it on the grounds that the bill created a tax that required a supermajority vote in the Legislature. Lower courts upheld the law. PLF filed an amicus brief urging the Arizona Supreme Court to grant review and protect the interests of taxpayers and the integrity of government by enforcing constitutional, statutory, and regulatory restraints on taxing and spending.Read more
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Next week, the House Committee on the Judiciary’s Subcommittee on Regulatory Reform, Commercial and Antitrust law will hold a hearing entitled “Rulemakers Must Follow the Rules, Too: Oversight of Agency Compliance with the Congressional Review Act.” PLF’s Todd Gaziano has been invited to testify at the hearing.
Shed a (crocodile) tear for Luke Skywalker today, as Mark Hamill’s much ballyhooed Autograph Law is set to be undone and reformed by the same California officials who made the mistake to pass it in the first place. AB 228 has arrived at the Governor’s desk, and in all likelihood will be signed into law any day.