Commentary

Why Berger and Moore’s suit against Gov. Cooper over Medicaid expansion is bogus

There are obviously a lot of substantive reasons why expanding Medicaid under the terms of the Affordable Care Act would be great for North Carolina. One can actually come up with thousands by doing nothing other than considering the number of human lives that would be saved from premature death.

That said, it’s also worth noting that there is a false narrative percolating in some circles that Republican legislators have somehow seized the legal high ground with respect to Gov. Cooper’s effort to the get the expansion ball rolling in recent days. As Vice President Biden, might observe, this is a bunch of baloney. Here’s why:

As Cooper and federal officials point out in briefs filed in federal court yesterday, there are several reasons why Senate President Pro Tem Phil Berger’s and House Speaker Tim Moore’s lawsuit attacking Cooper’s efforts are off-base. Here are a few of the most notable:

First and foremost, any dispute between Cooper and the legislature is not a matter of federal law; it’s a matter for the state courts to sort out. Second, the Berger-Moore request for a temporary restraining order was so shoddy and poorly constructed that it didn’t even give proper notice to the defendants.

And then there’s this from the Cooper administration’s brief:

“More basic than that, however, the arguments Plaintiffs presented to this Court when seeking the TRO suffer from numerous flaws, any one of which is fatal to their request. Among other things, Plaintiffs’ papers did not disclose to the Court that the state plan amendment at issue in this case will not—indeed cannot—go into effect until January 1, 2018—nearly one year from now. That fact, alone, negates the irreparable harm that Plaintiffs were required to show to obtain the TRO. Nor did Plaintiffs disclose that, if the expansion were to be funded from taxpayer sources, it could proceed only following affirmative action by the North Carolina General Assembly. Thus, Plaintiffs’ assertion that submission and approval of the amendment would irrevocably commit the state to expending taxpayer funds has no foundation.”
You got that? Berger and Moore took the extraordinary step of seeking a temporary restraining order — a tool that’s reserved for emergency situations — to try and stop something that could not possibly go into full effect for a year and over which they still retain enormous authority. Lawyers for the feds put it this way in their brief:
“…plaintiffs lack standing to press their claims, have not alleged any violation of federal law, and are not facing any irreparable harm.”
In other words, the whole Berger- Moore lawsuit is a bogus bit of grandstanding that has no legal basis and is ultimately designed to change the subject from what it should be be — how to best help hundreds of thousands North Carolinians — into yet another debate over how and whether to to limit the powers of the state’s new Governor.
The bottom line: Let’s hope the federal judge wises up to this scam ASAP and let’s Cooper’s expansion effort proceed. Everyone knows that he will still face an uphill battle, but North Carolina ought to have the debate and Berger and Moore ought to have the courage of their convictions to participate rather than try to torpedo it with a bogus end run in the courts.

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