Is the Obamacare Private Option Unconstitutional?

The Obamacare Private Option law appears to have been enacted in an unconstitutional manner. At best, the sponsors used a slovenly procedure to introduced meaningless bills and then used the bills as a host to insert another bill into them.  A procedure known as “shell bills” was once a useful procedure, but sometimes, like HB1143 and SB1020 of 2013, it has been used in a dangerous way that may violate the Arkansas Constitution.


The Obamacare Private Option bills (HB1143 & SB1020 of 2013) were both filed as “shell bills.”  Shell bills are short bills that do not have all the details filled in. Shell bills were used when there was not enough time to get all the bill details worked out by the bill filing deadline.  The sponsor would include some major provisions and then outline other provisions that would be added by amendment later.

At first shell bills served a good purpose, but the practice got out of hand.  As a legislative staffer for over three decades, I saw the shell bill process abused.  Sometimes a legislator would request a shell bill without knowing exactly what he or she wanted the bill to do and would merely provide a vague title that also would be repeated as the body of the bill.  Whenever I had a chance to talk to the legislator directly I would caution him or her that a vague shell bill could be unconstitutional and tried to add as much information to the bill as possible.

Shell bills have become too common in recent years.  Many legislators now wait until the last minute to request a bill to be drafted.  Legislative staff barely have time anymore to prepare all the late bills, even with many of them being prepared as shell bills.

This dangerous practice replaced a better practice, common in the 1980’s, in which a legislator who needed more time to flesh the details of a bill, would try to introduce the bill after the filing deadline by filing a concurrent resolution of the House and Senate requesting a suspension of the filing deadline in the Joint Rules and to authorize the legislator to file a bill on a specific subject. For whatever reason, the House of Representatives wanted to stop the practice of suspending the rules.  Once the House discouraged this practice, vague shell bills replaced a suspension of the rules.

Later the House had a problem because some meaningless shell bills actually passed the House.  So, the House adopted a rule to keep shell bills from going to committee until the shell bill is amended to add detail.  The House definition of “shell bills” shows no understanding of the dangers of vague shell bills.  House Rule 39 says in part:

Shell bill means a bill, typically with no substantive provisions, that is introduced for purposes of later being amended to include the actual legislative proposals advanced by the sponsor and within the subject matter of the title of the shell bill.


Both the House and Senate versions of the Obamacare Private Option were amended into meaningless shell bills. Below is the entire text of the body of the two bills.

  • HB1143SECTION 1. The purpose of this act is to improve the law concerning the health of Arkansans.(View original bill)
  • SB1020SECTION 1. The purpose of this act is to amend the law concerning health insurance for citizens of the State of Arkansas.(View original bill)

Do these bills give any indication that they concern Obamacare Medicaid Expansion funds being used to purchase private insurance for Medicaid Expansion recipients? No.

You could make lots of guesses on what HB1143 was about.  Immunization? Sanitation?  Smoking? Clean Air?  Ambulance services?  Regulation of hair weaving? What would your guess have been?

The original version of SB1020 is only a little better.  We can tell that it has something to do with health insurance, but what?  Coverage of chiropractic services or physician’s assistance services?  Prohibiting coverage for Plan B drugs that cause abortion of a fertilized egg? Allowing insurance companies from other states to compete in Arkansas to provide health insurance coverage to Arkansans and thereby drive down costs?  What would have been some of your other guesses?

The point is – the original versions of HB1143 and SB1020 are meaningless and you can’t determine what they are about.  The goofy thing about HB1143 is that it was filed as a shell bill in January 2013, long before any filing deadline would come into play.  The legislature did not get its marching orders until Governor Beebe gave legislators his draft legislation on Friday, March 22, 2013.


Arkansas Constitution
Article 5 § 21. Laws by bills — Amendment.

No law shall be passed except by bill, and no bill shall be so altered or amended on its passage through either house, as to change its original purpose.

The Obamacare Private Option draft was amended into HB1143 and SB1020.  Article 5 § 21 demands amendments to a bill be consistent with the original purpose of the bill.  But the original bills were meaningless and had no specific purpose.

The legislature may ignore its own procedures, but cannot ignore requirements in the constitution.  The constitution requires amendments be judged against the original purpose of the bill.  Therefore, a bill, as filed, must have an original purpose against which the constitution will judge all amendments to the bill. The original purpose of these two bills cannot be known.  Since the original purpose cannot be known it appears that both bills, as filed, are unconstitutionally vague and violate Article 5 § 21

Can you thwart Article 5 § 21 by filing a bill with an original purpose that cannot be known, and then use the bill as a host for almost any idea you want to insert into the bill?  The question a court would have to answer is: Does a bill violate Article 5 § 21 if the original purpose cannot be determined? 

If the court answers “yes it is unconstitutional”, then the Obamacare Private Option laws must fall, and just as importantly the shell bill process must be cleaned up.

Shell bill crystal ball2If the answer is “no”, then I would be interested in learning where to purchase a crystal ball so that I, too, could understand the original purpose of a vague one sentence bill.