Everyone by now knows that Governor Kasich used the controlling board to do an end run around legislative Republicans and secure federal funding for the expansion of Medicaid.

The conservative Buckeye Institute, the conservative 1851 Center, and “unnamed House Republican lawmakers” intend to file a suit suggesting that the

Controlling Board vote is invalid because it does not represent the “legislative intent” of the General Assembly.

The Buckeye Institute put out a six page “white paper” supporting this novel legal argument.

“Novel” is polite lawyer speak for “stupid.”

It’s more like a version of the Chewbacca Defense:

I have one final thing I want you to consider. Chewbacca is a Wookiee from the planet Kashyyyk. But Chewbacca lives on the planet Endor. Now think about it; that does not make sense!  Why would a Wookiee, an 8-foot-tall Wookiee, want to live on Endor, with a bunch of 2-foot-tall Ewoks? That does not make sense! But more important, you have to ask yourself: What does this have to do with this case? Nothing. It has nothing to do with this case! It does not make sense!

Look at me. I’m a lawyer defending the Republicans in the Ohio legislature, and I’m talkin’ about Chewbacca! Does that make sense? Ladies and gentlemen, I am not making any sense! None of this makes sense! And so you have to remember, when deliberating about the Controlling Board, does it make sense? No!  It does not make sense! If Chewbacca lives on Endor, you must find that the Controlling Board lacks the authority to expand Medicaid.

Here is why this argument how no chance.

The argument is based on a state law that prohibits the controlling board from taking any action “which does not carry out the legislative intent of the general assembly regarding program goals and levels of support of state agencies as expressed in the prevailing appropriation acts of the general assembly.”  R.C. 127.17.

The Buckeye Institute suggests that the “legislative intent” of the General Assembly can be discerned from the fact that the Legislature voted to prohibit this spending of federal money on Medicaid in the budget bill.  The problem is that the Governor vetoed that portion of the budget bill.

“Legislative intent” is not simply what the legislature feels like at any one moment.  It is not simply a resolution passed by the legislature at any given moment.  Rather, “legislative intent” is the purpose behind a law.  If there is no law, there is no “legislative intent” to consider.

It is futile to search for legislative intent in a bill that never became law, because the Governor is by virtue of his veto power a key participant in the legislative process.  To suggest otherwise would permit the general assembly to act on its own, regardless of whether the governor signs or vetoes an appropriations bill.

In this situation, the Governor exercised his line item veto powers to strip the prohibition from the budget bill.  The all too obvious plan of the Republicans in the General Assembly was to slip the prohibition on Medicaid expansion past the Governor within a board appropriations bill.  It was precisely to combat this type of “legislative deviousness” that the line item veto was born.   Allowing the General Assembly to control appropriations, even when vetoed by the Governor, would unconstitutionally abridge the Governor’s line item veto power.

This is easy to see in the statute cited by the Buckeye Institute.  The statute says that the legislative intent is to be found in “the prevailing appropriation acts.”  The “prevailing acts” are those passed by the legislature and signed by the governor.  Everything else is just the legislature’s “ideas.”

In other words, until an act of the legislature is signed by the governor, it is nothing more than a proposed bill.  And, as one Ohio Court has stated, a proposed bill is “not binding authority.   In re Adoption of O.N.C., 191 Ohio App. 3d 72, 79 (2010).

No court has ever bought the argument of the Buckeye Institute.  The only case cited by the Buckeye Institute is a 1981 decision State ex rel. Meshed v. Keip, 66 Ohio St. 2d 379 (1981).  This case makes the argument against them.  In that case, the court considered the ability of the controlling board to transfer funds from one year to another.  The facts are complicated, but the bottom line is clear: the court in reviewing the legislative intent looked to the appropriations bill that had been signed by the governor.

Bottom line:  this lawsuit is so weak that we suspect that the courts will quickly dismiss it.