COMMENTARY: Nevada public option is not just bad policy, it’s unconstitutional

Across the state, Nevadans are rightfully worried about whether they can afford the cost of a major health event. But is a taxpayer-backed health insurance system, which will raise revenues and expenditures for the state in a constitutionally dubious way, really the best solution to the problem?

No. Nevada’s so-called “public option” will decrease patient access to health care while exposing taxpayers to unneeded and unwarranted risk — and state legislators rushed into the idea so quickly that it might not even be legal.

In 2021, Nevada lawmakers pushed through Senate Bill 420 to create the public option despite warnings from health care leaders, practitioners and others that it would negatively impact health care access and affordability and burden state health care providers.

With concrete steps now being taken toward its implementation, it is critical for Nevadans to understand that, in addition to the negative consequences SB420 will have for health coverage and care, it was also enacted in violation of the state constitution.

That is why we recently joined together to file a lawsuit challenging SB420. Our lawsuit, which asks the court to stop the implementation of SB420, demonstrates that the bill violates three distinct provisions in the Nevada Constitution.

First, SB420 violates Article IV, Section 18(2), which requires a two-thirds majority in each legislative house to pass any bill that “creates, generates, or increases any public revenue in any form.” This requirement exists to protect taxpayers and ensure that any legislation creating revenue is subject to a greater standard of legislative approval. Although SB420 will in fact generate public revenue, it was not passed by the necessary two-thirds majority in either the Assembly or the Senate.

Second, the bill is at odds with the appropriations clause of the state’s constitution. Rather than laying out a specific appropriation to be used for a specific purpose, as is required, the bill gives the state treasurer and executive agency officials unlimited discretion to decide how to use an unspecified amount of funds for the vague purpose of increasing affordability.

And third, SB420 violates the state constitution’s separation-of-powers principle by giving another branch’s lawmaking authority away to executive branch agency directors without providing any suitable standard to govern the way in which that authority is exercised.

While Nevada’s current administration has proposed moving ahead with SB420’s implementation under the auspices of a market stabilization program, this approach unfortunately does not change the fundamental problems with the bill and how it was enacted.

As federal regulators consider the state’s proposal to move ahead with this risky, unaffordable new health insurance system, we will continue pursuing our case in court to keep this legislation from harming Nevadans. So much of the state’s economic future is at stake. Traditionally, Nevada’s low-tax, common-sense regulatory environment has attracted jobs and financial prosperity from states throughout the Southwest. That environment is now threatened with a government-run health program that could carry heavy tax and spending burdens.

Nevadans deserve access to high-quality, affordable health coverage and care — and they also deserve to have their constitutional rights respected and upheld. The facts show that SB420 fails on both fronts. Nevada can do better.

Robin L. Titus, M.D., a Republican, represents District 17 in the Nevada Senate. Pete Sepp is president of the National Taxpayers Union.