Tuesday, November 13, 2007

You Gotta Keep 'em Separated

There were two big stories on Tuesday, but one common theme.

The day started with JCAR voting to suspend the Adminstration's efforts to establish an emergency rule that would allow 147,000 parents and other caretakers to buy discounted health insurance through a massive expansion of the state's FamilyCare program.

As a member of JCAR, I can tell you that despite efforts by some to paint it otherwise, our 9-2 vote was in no way a referendum on the issue of making access to health care available to more Illinoisans. Far from it.

Rather, the issue before us was whether HFS had the authority, via emergency rule (which has an immediate effective date) to make a significant policy shift on behalf of the State of Illinois. Members of both parties, and both chambers, decided that it did not.

The other major development was a Circuit Court Judge tossing out caps on medical malpractice damage awards. In her 10-page opinion, Judge Larsen ruled that the law violates the Illinois Constitution’s “separation of powers” clause — essentially finding that lawmakers interfered with the right of juries to determine fair damages.

And that is where we find the common thread.

Today marked the latest in a series of attempts by the Administration to do by rule what it has been unable to do via the legislative process. By exceeding its authority, the actions of the Administration jeopardize the very integrity of that process. As I have previously stated, JCAR was not created to be a shadow legislature, and it should not be used by the Administration to make de facto legislative policy determinations for the people of Illinois that it is unable to do via the proper and constitutional channels.

Similarly, today's court ruling, while narrow, focused on this same critical concept. During the debate on this issue, I maintained that the bill "isn't right, isn't fair and isn't legal". I have no desire to again debate the cause of malpractice insurance premium increases, and I will acknowledge that reasonable minds may come to different conclusions on the issue.

But I will say that the premise that it is not within the purview of the Legislature to artificially curtail the rights and responsibilities of the jury process received a ringing endorsement today. It wasn't legal.

And because the issue has been narrowly, and properly, decided on tight legal grounds, I would anticipate that the Supreme Court, notwithstanding last year's elections, will do the right thing and uphold today's ruling.

If that does in fact happen, I would hope that the proponents of the cap legislation would realize that a cap bill being passed and then ruled unconstitutional is becoming a near-ritual, and that continuing to pass such bills is not only non-productive, but amounts to little more than offering false hope to those desirous of such legislation.

The moral of today's stories is that like it or not, if they are sincere in trying to accomplish the goals that they claim to be seeking, both the Administration and the proponents of damage caps are going to have to find legal and constitutional means to reach those goals.

16 Comments:

At November 13, 2007 at 11:50 PM, Blogger Rep. John Fritchey said...

To 'John':

Rather than delete an otherwise intelligent post, I took out the personal cheapshots and am posting the rest of it here. If you don't want it posted as edited, just let me know and I'll take it down.

'John's' post:

Here is my problem - expanding FamilyCare has always been done by rule, yet you FEEL it should have been done through legislation this time, so you decided to cut people off healthcare.

To each their own - it is you who is going to have to live with the reality of what is happening to those you have now prevented from being able to buy into FamilyCare.

You may just dismiss me as someone you disagree with. Fine. I don't care. You don't even have to publish my comment. I am not out for myself here.

I just want you to know that real life is still going on for the rest of us.

Use all the excuses about procedure, bad manners and poor leadership that you would like. At the end of the day, none of that matters. The Governor doesn't matter.

It was up to you. In that situation, some people step up and do what's right, and others do what is right for them.

Just remember that.

 
At November 14, 2007 at 12:03 AM, Blogger Rep. John Fritchey said...

Now my response:

1) I, and the other 8 members who voted to suspend the rule did not do so because we FELT it should be done legislatively, but did so because we determined that the proposed emergency rule was not statutorily proper, hence, illegal.

If anybody 'felt' anything, I believe that the Administration felt that it could unilaterally implement a major change in Illinois law and policy.

2) We did not 'cut' anybody off health care. Period. You are correct that the ruling prevents a large number of people (making up to $82,000/year) from becoming eligible for subsidized healthcare.

3) Yes, we disagree as to the facts of what transpired.

4) You are correct, at the end of the day, what matters are the big issues. Like providing meaningful access to health care to the thousands of people who do not presently have it. And that is a concept that I wholeheartedly support.

5) But what also matters is the process and the Constitution. Ask yourself if you would honestly feel the same way if the Governor was using this tactic to try to achieve something with which you disagreed?

6) I assure you it is toughest to do what's right when doing so produces an undesirable result.

7) In closing, I didn't so much do 'what was right for me' as I simply did what was right. And after much reflection during the rest of the day, I am comfortable that I did indeed make the right decision.

 
At November 14, 2007 at 9:00 AM, Anonymous lake county democrat said...

I dunno -- I kind of feel the same way I did when a bunch of rich fortune 500 companies, who swore they weren't condoning the rape and pillaging in Darfur, sued to overturn the Illinois sanctions simply to uphold the "rule of law." Was there no way you could have attempted to pass legislation to expand FamilyCare the way you saw fit and, if and only if that failed, moved to overturn the emergency rule? If you had done that you'd have had the best of both worlds. The Karen Schivo fiasco in Congress did show one thing: when there's a will, there's a way (i.e., to pass things quickly). Also, what's the point of your "up to $82,000/year" remark? I'm presuming the median is considerably lower, and even $82K for a family of four isn't all that much money, especially in the Chicago area.

 
At November 14, 2007 at 9:03 AM, Anonymous s said...

John - I would have to disagree that you felt you didn't do what was right for you. You get a whole lot of benefit from this. But, anyway.

"My problem" with your action is this - the administration wasn't trying to change existing law, they were acting within the bounds of what the law has set out for them. The law has established that they can set eligibility levels for these programs.

What your action did, then, is supplant your will as JCAR for that of the whole General Assembly.

So, from a purely process perspective, you have done exactly what you seem to be harping against. You made JCAR a second legislature, and you overruled existing statute.

That is how I see this. I know it isn't a popular position to take, actually being on the side of the Governor and all, but I believe my analysis is correct.

 
At November 14, 2007 at 9:35 AM, Blogger Rep. John Fritchey said...

s-

I appreciate your post, but I think that we just fundamentally disagree on the law as it applies here. The members who voted yes, plus JCAR staff (who is very good), all felt that we were following the law, and that the proposed rule did not.

Time will tell. I doubt that this matter is resolved.

 
At November 14, 2007 at 9:41 AM, Anonymous s said...

"I doubt that this matter is resolved"

What do you mean? Do you mean with regard to the regular rule, or do you think something else will happen on this emergency rule?

I know JCAR or the General Assembly are allowed to reconsider.

Plus, I don't think JCAR staff should be influencing your decisions. That brings a whole new constitutional element into play here.

 
At November 14, 2007 at 1:01 PM, Blogger Rep. John Fritchey said...

LCD,

I wish that there was a way to accomplish this legislatively, and if the Administration proposes a responsible way to do so, they will have my full support. Please keep in mind that this series of events was controlled and put in motion by the Administration, not the Legislature.

And there was no 'point' to my referencing of the income limit under the proposed rule. I was simply trying to pass on some information.

 
At November 14, 2007 at 5:54 PM, Anonymous Anonymous said...

John -

The expansion also covers a single parent who makes $26,000 a year.

I would say the vast majority of people who enroll would be making in the $38-$50k range.

And is it really that big a deal that someone at $82k would be eligible? That family of 4 would be buying in - meaning they would be paying, according to the rule, $420/month for coverage.

A family of 4 at $62k would be paying that same amount. That's 8% of their income ($5,040 per year), before taxes.

I would be surprised if they weren't subsidizing the state at that cost.

 
At November 14, 2007 at 10:10 PM, Blogger Rep. John Fritchey said...

anon 5:54,

I tried to make my point clear, I'm sorry if I didn't. It wasn't necessarily the plan that I disagreed with, it's how it was attempted.

s,

There is a big difference between getting information and research from staff, and being 'influenced' by them. That's a large part of why staff exists in the first place.

 
At November 15, 2007 at 7:31 AM, Anonymous DuPage Saint said...

Boy I misread this. I thought the article would be about the leadership and governor.

 
At November 16, 2007 at 10:45 AM, Anonymous Anonymous said...

John did the right thing. What were the two Republicans thinking who voted to allow the Gov to get away with it? Neither Hassert or Mulligan are fans of Rod.

 
At November 16, 2007 at 11:46 AM, Blogger Yellow Dog Democrat said...

In all of this debate, the one thing that seems to get lost is that there is no money appropriated for the expressed purpose of funding the Governor's health care expansion.

Passing the emergency rule would've been massive fraud, because it would have either been left unfunded, the legislature would have to raise taxes to pay for it, or we'd have to cut funding for other health care programs.

The fact that the Governor's office is unwilling to even consider an emergency expansion to fill the void in SCHIP funding -- something the General Assembly appears willing to fund -- says to me that this has nothing to do with providing health care. This is about our brash, childish, egomaniac "governor" once again trying to get his own way, no matter what the law or our Constitution says to the contrary.

This follows his unconstitutional efforts to disband the State Board of Education, his unconstitutional efforts to criminalize video game sales, his unconstitutional plan to sell the James Thompson Center, his support for unconstitutional caps on medical malpractice verdicts, his frivolous lawsuits against the General Assembly, the illegal firing of state workers, and 29 ongoing federal investigations into his office.

And those are just the ones I can recall of the top of my head.

All I can say is that Blagojevich's much-bragged-about "C" in Constitutional Law From Pepperdine "Surf's Up" University must have been a singular act of human generousity by his professor.

 
At November 17, 2007 at 7:51 AM, Anonymous Bill said...

The point is that people who were previously unable to afford health insurance now have afforable access to it. It is not the process it is the result that counts.
JCAR's questionable constituitional authority to act as a second legislature or to assume the role of the courts in determining legislative intent will someday be decided by the courts. Today, however, The changes in eligibility are going forward.
The governor promised to change the way things are done in the Capitol in order to provide much needed relief to the citizens of Illinois. This is just one example of how he can accomplish his goal of making the state work for the people instead of the other way around.
Thanks, Governor! Everyone in Illinois should be able to get medical care when they are sick.

 
At November 17, 2007 at 10:00 AM, Blogger Rep. John Fritchey said...

"It is not the process it is the result that counts."

Bill, you can't really mean that. And let me toss you a question that I previously threw out to another poster - Would you feel the same way if it was a result that you didn't support? I'm guessing that you wouldn't.

As I said before, it really isn't the result I am troubled by, it is the process.

Let me also submit to you that those who disregard the process today may well be the ones to try to cling to it tomorrow.

 
At November 17, 2007 at 1:27 PM, Blogger Rep. John Fritchey said...

Anon 1:22,

As soon as you have the backbone to put your real name on that post, I'll be more than willing to post it.

Seems fair, don't you think?

 
At November 17, 2007 at 9:54 PM, Blogger Rep. John Fritchey said...

That's what I thought.

 

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