A friend of mine went fishing and didn’t catch a thing. When his buddies asked how he did, he responded, “I didn’t catch anything less than 12 inches.” My friend’s response was to cast himself in the best light possible without telling the whole truth. Essentially, this is what the Post Register Editorial Board did in its recent editorial piece about the Proposition 2 lawsuit.
The Board wrote: “[N]ot a single judge sided with any significant argument from Idaho Freedom Foundation Chairman Brent Regan and Idaho Falls Attorney Bryan Smith.”
Truth: There was a procedural part and a substantive part of the lawsuit. The procedural part involved complex issues of jurisdiction, standing, and justiciability. If Regan had lost any one of these three issues, the Supreme Court wouldn’t have heard the case at all. The Attorney General claimed Regan had failed to establish all three. But three of the five Justices agreed with Regan’s position that they should hear the lawsuit because it presented a constitutional question of an urgent nature.
The Board wrote: “The state’s five top experts on Idaho constitutional law all agreed that the suit was bunk.”
Truth: Experts also said that Regan couldn’t win on the procedural issues. But these experts were wrong.
The Board wrote that the suit was “baseless.”
Truth: The Supreme Court found that Regan’s suit was based on a “good faith” legal argument. In fact, the Attorney General sought attorney’s fees claiming the suit was baseless. But the Supreme Court denied the Attorney General’s request stating that Regan hadn’t acted unreasonably “in bringing his petition before this Court.”
The Board wrote that the dissenting opinions found “that the court shouldn’t even consider such a case.” The Board made it sound like the dissents thought the entire case was frivolous.
Truth: The dissents argued only that the Court didn’t have jurisdiction to hear the case. But three other Justices disagreed. Importantly, the dissents never spoke about the substance of the case or the merits of the constitutional challenge.
The Board cheered that Justice Moeller said Regan brought a mere “political question” before the court.
Truth: Three of the five justices disagreed with Justice Moeller’s “political question” assessment. In fact, Justice Stegner wrote a separate opinion telling Justice Moeller he was wrong and saying that this case presented much less a political question than other constitutional cases the Court has considered. Although Brent Regan of the Idaho Freedom Foundation did not win on the constitutional issue, the Supreme Court did rule that the Department of Health and Welfare (the executive branch) cannot unilaterally change Medicaid expansion eligibility and/or funding requirements without first obtaining legislative approval. This is significant because it means that Idaho is not automatically stuck with future federal law changes that make Medicaid expansion more expensive for Idahoans. Perhaps the Editorial Board should have noted that Brent Regan and the Idaho Freedom Foundation are both dumb like a fox.
