To stand a fighting chance, anti-Medicaid lawsuit needs to prove irreparable harm

Medicaid expansion is set to roll out in Alaska September 1st. It would offer health coverage to up to 40,000 very low-income adults who don’t have children. The lawmakers suing to stop expansion will ask a judge for a preliminary injunction. That would prohibit the state from implementing the program before the issue is decided in court.

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Brewster Jamieson is a lawyer who handles a wide range of civil cases for the Anchorage branch of Lane Powell. He has no ties to the Medicaid expansion case. But he has a lot of experience asking for preliminary injunctions. He says to convince a judge to issue an injunction, you have to do a few things:

“You have to show that you’re likely to prevail on the merits, first off, and the court has to find that there is a likelihood that you’ll prevail, in addition you have show irreparable harm and no adequate remedy at law — and it’s a relatively high standard,” he says.

Irreparable harm is something money can’t fix. For example, if an historic building is about to be torn down, a judge might grant an injunction to a historical society to keep the building standing temporarily until they can prove it deserves to stick around long term. If you tear it down, it can’t be rebuilt exactly the same, so the damage is irreparable. Of course, the legislatures’ case is very different. Here’s Jamieson again:

“So here I think that you’d probably have the legislature arguing that unless the injunction is granted, there is really no way to fix the legal quandary that they’re in.”

Chad Hutchison is a lawyer who works for Republican Sen. John Coghill. He helped craft the case that convinced the Alaska Legislative Council they should sue the governor. But he’s reluctant to go into detail on how the lawyers will prove irreparable harm if Medicaid is expanded.

“Well, we have a few arguments, and with all due respect, I think we’ll keep them close to the vest until the court filing is going to occur,” he says.

But Hutchison will talk about the other big thing the legislature needs to convince a judge — that they’re likely to win.

“We believe we have a very compelling case.”

The case comes down to whether the group who would benefit from Medicaid expansion is considered ‘required’ or ‘optional’ under the law. The Governor needs the legislature to approve adding an ‘optional’ population to the Medicaid program. Hutchison says the U.S Supreme Court settled that question when it allowed states to choose whether to expand Medicaid:

“If you look at the Supreme Court Case, it’s clear that they did not require the states to expand the Medicaid population.”

Alaska’s attorney general disagrees. The state declined to talk about the case, but in a letter to Senator Coghill, Attorney General Craig Richards writes federal statute clearly lists the expansion beneficiaries in the ‘required’ category. Richards says the Court only struck down the penalty for not complying with Medicaid expansion — states would have lost all of their Medicaid funding if they didn’t expand. The Court did not eliminate the new ‘required’ category. Richards says just because there is no way to enforce the expansion requirement, doesn’t mean it doesn’t exist.

Brewster Jamieson says he’s really glad he’s not the judge deciding the case. He’s also thankful Alaska is a state with a solidly independent judicial branch:

“You don’t want a judiciary that is made up of political cronies, of either party. What you want is a judiciary made up of judges who will call balls and strikes and do the best they can to decide the issues. In Alaska I think we’re very fortunate to have a judiciary like that.”

Hutchison, with Coghill’s office, says the Legislative Council hopes to file their lawsuit in Superior Court on Monday. That will give the judge less than a week to hold a hearing in the case. The timeline is shortened by President Obama’s visit, because the courts won’t hold hearings when he is in Anchorage, on Monday, August 31.