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Jindal view may hold legally, will succeed politically

The intricacies and arcane nature of state government rulemaking has brought the Louisiana Legislature and Gov. Bobby Jindal into conflict – each having some plausible claim that the law supports their conflicted actions. However, one seems on more solid ground legally, even as the other has the means politically to impose its solution and likely triumphs in the court of public opinion.

The tussle comes over rules promulgated by the Department of Health and Hospitals over funding changes, mainly reimbursement reductions, made to stave off deficit in medical assistance programs. R.S. 49:953 specifically grants DHH the power to make these through issuance of emergency rules which bypass the normal review procedure. Instead, they go into effect immediately upon publication in the Louisiana Register, so these rules went into effect on Nov. 20 (starting on page 2463).

The statute then says they may be reviewed by appropriate legislative committees, designated in R.S. 49:968 as the House and Senate Health and Welfare Committees. Last Friday, the committees did so and, as R.S. 49:953 allows, issued an adverse report which then according to that statute means the rule must cease being enforced.

But the Jindal Administration said it could reject that report, citing R.S. 49:968(G). This statute does not differentiate between “regular” and “emergency” rules in giving the governor the power of veto of an adverse report, even as it presumes throughout the regular procedure is being followed, which means review occurs prior to rule issuance but after promulgation. Further eroding the claim that the governor can veto is that in the promulgations specific reference was made to R.S. 49:953 as the authority which identifies the committees’ decisions as final.

Still, even as the preponderance of evidence accrues to the non-veto interpretation to resolve this ambiguity, another factor is that constitutionally the state cannot remain in deficit. Theoretically, continual committee rejection of agency rules could produce that situation, so the Jindal Administration has a point when it says by necessity the veto power should exist across all rules, even as one statute implies that it does while another states it does not. As such, while the argument that the governor can’t veto probably has more weight, by no means is it definitive (and even the document prepared for legislators to explain aspects of state government is ambiguous on the question).

Politically, the advantage rests with Jindal. The law makes no recourse to a disputed interpretation, so presumably the next stop would be the 19th District Court. The Administration would continue with its adjustments designed to save $13 million and it’s unlikely even if a suit were filed that the Court would see such irreparable harm that it would expedite the case, assuming it even sees merit in the plaintiff position to grant injunctive relief. Meanwhile, the regular process already probably is being followed by DHH which means at most the process would take 90 days. By the time the court decides the proper interpretation, using the regular rule process the rule as desired by DHH will have been long in place. At worst, down the road the state may have to pay out extra money during the period after promulgation of the emergency rule and prior to enactment of the regular rule.

Yet even if it bulldozes its interpretation through, Jindal does run a risk that if there is a case, and if the court finds with plaintiffs, it will do him some public relations damage. Even if a case developed and the court sided with the Administration, in the upcoming session an easy way to make money would be to bet that a bill will go through resolving the ambiguity in favor of the Legislature, with criticism of Jindal throughout the process, setting up a situation where if he signs it he’s made to look like he did initially go against the intent of the Legislature, or his veto would bring a new round of disparagement and accusations of gubernatorial power run amok.

Thus, the real contest here is really political, not legal. On balance, the Jindal Administration wins here by arguing the easily-understood proposition that it upheld the Constitution, against the confusing minutiae of the Administrative Procedure Act claimed by opponents to the move.

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