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August 13th, 2020:

We don’t need a vote to expand Medicaid

There’s a fundamental truth that needs to be addressed in this.

It’s constitutional – deal with it

On Tuesday, Missouri became the 38th state to expand Medicaid, opening healthcare to over 230,000 Missourians. It joins a lengthy list of GOP-led states in expanding healthcare, including Nebraska, Utah, and Oklahoma. Meanwhile in Texas we still lead the country in the number of uninsured and, since the COVID-19, pandemic another 650,000 have lost their health insurance.

The ballot initiative to expand Medicaid passed in Missouri by 53 percent, with several suburban counties in St. Louis and Kansas City voting overwhelmingly for the measure. The governor of Missouri, a staunch conservative, actually added the ballot initiative to the August primary ballot instead of November’s presidential ballot, hoping a smaller turnout would defeat the measure.

Clearly, the voters of Missouri felt expanding Medicaid was important for their state. The vote also comes as the Trump administration continues its effort to dismantle the Affordable Care Act, potentially kicking 20 million Americans off their health care and denying preexisting conditions coverage to over 120 million. Both Gov. Greg Abbott and Texas Attorney General Ken Paxton support ending the ACA.

Texas has been in a health crisis for a long time, well after the state decided not to expand Medicaid through the ACA. According to a report from 2018, over 17 percent of Texas residents lacked health coverage. That’s about 5 million Texans without access to health care.

With COVID-19, that health crisis has only exacerbated. While cases and hospitalizations from COVID-19 have gone down in parts of the state, those numbers will likely rise precipitously as schools open. Over 7,000 Texans have died from the coronavirus. Many hospitals, particularly rural ones, are overwhelmed. The health care status quo has never felt so dangerous and untenable.

So will Texas ever get a chance to vote on expanding Medicaid? According to Republican lawmakers in the state, that would be a “no.” Rep. Celia Israel commented on Twitter that she and Rep. John Bucy sponsored a bill in the last legislative session that would allow voters to “weigh in and expand Medicaid,” but that it never got a hearing.

[…]

If Texans do get a chance to vote on expanding Medicaid, it will surely be opposed by Republicans statewide and in the legislature. If history is any guide, however, improving health care will transcend partisan lines.

The people of Missouri voted on the question of expanding Medicaid because the state of Missouri allows for laws to be enacted by referendum. In other words, in the state of Missouri and a number of others, you can collect petition signatures to put a proposed law up for a vote by the people, which is then enacted if it passes. Different states have different rules for this, but that’s the basic idea. The city of Houston allows for charter amendments to be put up for a vote via the petition process, which is always a fun thing to endure. For better or worse, the state of Texas does not allow for this.

The key thing to understand here is that the folks who pushed Medicaid expansion in Missouri via referendum did so for the explicit purpose of bypassing Missouri’s legislature and governor, both of which opposed Medicaid expansion. Most states early on passed Medicaid expansion via their legislatures, including some Republican states, but in recent years most of the action has come via the ballot box, in states like Idaho and Nebraska and Oklahoma. The key ingredients there were a combination of legislators and governors that opposed expanding Medicaid, and a petition process that allowed for the legislative process to be circumvented.

So if you’ve wondered why if those states can vote to expand Medicaid why can’t Texas, the answer is because the law doesn’t allow for it. It can only be done via the Legislature. Indeed, bills to do some form of Medicaid expansion have been proposed but have not gotten anywhere. The reason for that of course is intransigent Republican opposition, but guess what: The Democrats have a shot at taking the majority in the State House this year (as you may have heard), which would overcome one of those obstacles. We’d still need to take the Senate and elect a new Governor to finish the job, but at the very least the House could pass a Medicaid expansion bill, or put something for it in the budget, and dare the Senate and Greg Abbott to oppose it. I for one would be fine with having the 2022 Governor’s race be defined in large part by expanding Medicaid (in addition to, you know, COVID-19 response).

If that’s the case, then what was Rep. Israel tweeting about? Very simply, it was a political move to try to force the issue in a slightly different way. What Reps. Israel and Bucy proposed was a Constitutional amendment, which is something that the voters have to approve, which would have expanded Medicaid. Why propose a Constitutional amendment, which requires a two-thirds vote in both chambers, instead of a regular old bill that needs only a simple majority? Three reasons: One, constitutional amendments do not need the governor’s approval, so it would go to the voters regardless of what Greg Abbott wanted. Two, it offered Republican legislators who opposed Medicaid expansion but might have felt the need to do something a way out, as in “just vote to let the people decide, and we’ll never bother you about it again”. And three, constitutional amendments can only be changed or repealed by subsequent constitutional amendments, with their two-thirds-majority requirements, thus protecting Medicaid expansion via this avenue from the whims of a future Republican legislature.

The point is, though, we don’t need to vote to expand Medicaid. At least, we don’t need to vote on a ballot proposition to do it. We just need to vote for a Legislature and a Governor who are willing to do it. We’re a lot closer to that than we’ve ever been, and we’re closer to it than states like Missouri and Idaho and Nebraska and Oklahoma had any hope of being. The votes we need to expand Medicaid are this November, and November of 2022. Those are the prizes to keep your eyes on.

Harris County issues guidance for opening schools

They can’t issue mandates, so this will have to do.

Judge Lina Hidalgo

Harris County Judge Lina Hidalgo on Wednesday unveiled the county’s guidance for school reopenings, recommending based on a handful of COVID-19 metrics that schools offer only virtual instruction in the coming weeks until the virus is further curbed.

County officials are issuing the guidance as families and education officials continue to grapple with the idea of resuming in-person classes in the coming weeks, and after Gov. Greg Abbott barred local officials from ordering campus shutdowns to stem the spread of the coronavirus.

Under the non-binding guidance, Hidalgo and county health officials recommended that school districts offer only virtual instruction as long as Harris County, across a 14-day span, records more than 400 new COVID-19 cases per day, remains above a 5 percent test positivity rate or continues to devote more than 15 percent of hospital beds to COVID-19 patients.

School districts are advised to reopen with reduced capacity as those metrics improve and Harris County hospitals see a 14-day average flattening or decrease in their general and intensive care unit bed populations. At that point, school officials can consult with Harris County Public Health officials on their plans to reopen.

“We simply cannot responsibly reopen schools to in-person instruction right now,” Hidalgo said, acknowledging the frustration of parents, teachers and others. “But we can’t ignore this. We can’t tap our heels together and wish the current numbers away.”

Harris County officials are recommending schools remain closed longer than some other organizations.

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County officials have not yet publicly released the rate of COVID-19 tests coming back positive, though Umair Shah, the director of Harris County’s public health department, announced Tuesday that the rate is between 15 and 16 percent. The Houston Health Department and Texas Medical Center on Monday reported positivity rates of 14.6 percent and 10.6 percent, respectively. The city’s 14-day average has continued to decline since peaking at nearly 30 percent in early July, but remains above the county roadmap’s 5 percent threshold.

Hidalgo and Shah lack the authority to order compliance with the roadmap before the school year begins. Abbott said July 31 that local school boards and state education officials can limit the reopening of buildings in the first eight weeks of the school year, but county officials may not shut down campuses preemptively.

The governor said local health authorities may shut down campuses in response to confirmed outbreaks in a building, but Texas Education Agency leaders said public school districts risk losing state funding if schools remain closed for longer than five days.

You know how I feel about this, so I’m mostly going to peace out here. Judge Hidalgo had ordered schools closed for in-person instruction until at least September 8, back when that was a thing the locals could do. HISD is beginning remote learning only on that date now, and even as a parent of two HISD students, I have no freaking idea when they will be ordered back to the classroom. You can see the Ready Harris roadmap here and the metrics for success here. Maybe if Greg Abbott took this stuff half as seriously as Judge Hidalgo does, we’d be in a better position to reopen schools with some confidence.

Hemp lawsuit

This ought to be interesting.

New rules prohibiting the retail sale and distribution of “smokable” hemp products are unconstitutional, companies argue in a lawsuit filed Wednesday in Travis County.

When Texas legalized hemp last year, the legislation explicitly outlawed manufacturing and processing hemp products meant to be smoked. But rules released Sunday defining the state’s hemp program also banned the sale of these products.

That cut off a major source of income for many small businesses that sell hemp in Texas.

[…]

The lawsuit argues the ban of manufacturing and processing smokable products enacted as part of the law is unconstitutional and that the ban on distributing and selling these products is not valid.

Jax Finkel, executive director of the Texas Chapter of the National Organization for the Reform of Marijuana Laws, said banning the sale of smokable products goes beyond the intent of the bill.

You can see a copy of the lawsuit here. There’s a more detailed story here.

In a lawsuit filed in Travis County District Court on Wednesday, the companies are asking a judge to declare the ban unconstitutional and allow hemp products intended for smoking or vaping to be produced and sold legally across the state.

“At a time when the Texas economy is reeling from the fiscal impact of COVID-19, it is unfortunate that the State chose to foreclose such a large economic opportunity for our state and instead chose to force long-standing Texas businesses and jobs across the border to neighboring states, such as Oklahoma,” said attorney Chelsie Spencer, counsel for lead plaintiff Crown Distributing LLC.

“Crown Distributing, which manufactures the popular Wild Hemp brand of smokable products, stands to lose $59.6 million in revenue over the next five years if the bans are upheld,” Spencer told Marijuana Moment in an email. “The state of Texas stands to lose $2.9 million in sales tax revenue alone.”

Texas legalized hemp in 2019, in large part to capture a piece of an industry that is booming following the federal legalization of the crop through the 2018 Farm Bill. Hemp, a category of cannabis that contains less than 0.3 percent THC, has a variety of uses: Its seeds are a nutritious food source, its fibrous stalks can be made into textiles or building materials and its flowers can produce a variety of cannabinoids, most notably cannabidiol (CBD).

Texas’s hemp law as passed by the legislature specifically prohibited the manufacture of hemp products intended for smoking or vaping, though it left open the door for selling products made out of state. But a year later, regulators at the Texas Department of State Health Services (DSHS) issued rules extending that ban to forbid the retail sale of any smokable hemp products. That restriction took effect on Sunday.

Plaintiffs in the lawsuit argue that both those provisions should be overturned. The state legislature’s ban on processing and manufacturing smokable products violated the state constitution’s protection of economic freedom, they say, while DSHS lacked the authority to extend lawmakers’ ban to include retail sales.

“DSHS characterizes banning distribution and retail as ‘a logical extension’ of banning manufacturing,” the lawsuit says. “But even if this were true (it is not), agencies have no authority to enact rules that they deem to be a ‘logical extension’ of law.”

[…]

“If allowed to move forward, these bans on smokable hemp products will shutter businesses across the state, resulting in a loss of jobs and tax revenue,” the companies said in their complaint. “They impede the economic liberty of Texas businesses, pose an existential threat to Texas hemp manufacturers, farmers, and retailers, and are sure to stifle growth of a budding Texas industry.”

As for the ban on producing and manufacturing smokable hemp products, the companies say it violates the state constitution’s protections against arbitrary economic restrictions.

“There is no plausible law enforcement benefit from banning the Texas manufacture and processing of smokable hemp products,” the lawsuit argues. “Imposing an arbitrary constraint here is particularly perverse because the law does not ban the use or consumption of smokable hemp products. As such, Texas consumers will simply buy smokable products made out-of-state.”

“Stated differently,” it continues, “if Texas had banned the processing and manufacture of cheese in Texas, Texans wouldn’t stop eating cheese.”

See here for more on the hemp legalization bill (HB1325), which has also had the effect of making it a lot harder to prosecute marijuana cases. I’d be very interested to hear what a lawyer thinks about this complaint. I’ll say that the bits quoted here sound a lot like political arguments, which were made during the discussion of the bill. Don’t get me wrong, I largely agree with those arguments, but that doesn’t mean they’ll have any purchase in a courtroom. Still, this could be interesting, and it may help push the broader legalization argument forward. Perhaps we’ll get another incremental bill this session; we are for sure not getting anything more ambitious than that as long as Dan Patrick is Lt. Governor. But there’s a lot of room for small steps, and who knows, maybe this will end up being a big one. I wouldn’t count on it, but you never know. Reform Austin and the Hemp Industry Daily have more.

Texas blog roundup for the week of August 10

The Texas Progressive Alliance has been making the Jonathan Swan face for months as it brings you this week’s roundup.

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The Big 12 will play football

That’s their plan, anyway.

The start of the Big 12 Conference’s college football season will move forward as scheduled, conference officials said Wednesday, meaning four major Texas football programs are one step closer to playing this fall.

“Ultimately, our student-athletes have indicated their desire to compete in the sports they love this season and it is up to all of us to deliver a safe, medically sound, and structured academic and athletic environment for accomplishing that outcome,” said Big 12 Commissioner Bob Bowlsby in a statement. The season will kick off Sept. 26, with the conference championship pegged for Dec. 12.

Baylor University, Texas Christian University, Texas Tech University and the University of Texas at Austin are Big 12 members. The conference presidents’ decision to allow football during the coronavirus pandemic was made official Wednesday morning, a day after the Big Ten and the Pac-12 announced their seasons would be postponed until the spring semester.

Bowlsby said member schools have committed to enhanced COVID-19 testing, with three tests per week in high contact sports. Non-conference football opponents must also adhere to testing protocols that match conference standards.

Texas A&M University is part of the Southeastern Conference, which has also signaled its intent to allow teams to play this fall.

“We will continue to further refine our policies and protocols for a safe return to sports as we monitor developments around COVID-19 in a continued effort to support, educate and care for our student-athletes every day,” said SEC commissioner Greg Sankey in a statement Tuesday.

So that’s two Power 5 conferences not playing in the fall, two that say they are, and the ACC. Of course, there are a ton of questions that will have to be addressed before this can be taken seriously, such as “how exactly are you going to keep all those people safe”, “what will be the protocol when someone (or several someones) tests positive”, and “do you really think that allowing fans in the stands is a good idea”. You can have all the bravado you want, but you better have some idea of what you’re doing when something inevitably goes wrong. In the meantime, all I can say is that it’s going to be an interesting autumn. Or possibly spring, if things do change. Reform Austin has more.