dissenting:
I take issue with both the “delegation” and the “equal protection” analysis in the per curiam opinion.
The parties to this lawsuit argued the issue of whether the Emergency Budget Act was an unlawful delegation of legislative power which permitted the Governor to eliminate the Aid to the Medically Indigent (AMI) program at his will and without legislative review. However, I see no reason to confine the statement of my views to whether an unconstitutional delegation occurred here, because the record is bare of any legislative authority for the defendants’ actions in this regard in the Emergency Budget Act or elsewhere. The Emergency Budget Act (Pub. Act 82—1038) was passed as an emergency measure for dealing with a budget deficit that was estimated at $200 million in December 1982 and was expected to continue growing. Its effect was to give authority to the Governor and various other officials of State government to establish a contingency reserve of up to $164 million out of existing appropriations for fiscal year 1983, with the restriction that this reserve include no more than 2% of the 1983 appropriation to any “state agency” or 5% of any such agency’s 1983 General Revenue and Common School Funds appropriation. The Emergency Budget Act was also given a repeal date of July 1, 1983, so that in no case was any reservation of appropriated funds to last beyond the end of the fiscal year. The Act is a measure relating to appropriations, and any action taken pursuant to it by the executive branch would be a specially authorized exercise of the otherwise legislative appropriations power in the sense that such action would set an upper limit beyond which an agency could not spend. (See West Side Organization Health Services Corp. v. Thompson (1980), 79 Ill. 2d 503.) The Act contains no provisions expressly altering any substantive obligations created by any statute. As an act dealing with appropriations it may not constitutionally be viewed as mandating such alterations (People ex rel. Director of Finance v. Young Women’s Christian Association (1981), 86 Ill. 2d 219, 238; Benjamin v. Devon Bank (1977), 68 Ill. 2d 142; Ill. Const. 1970, art. IV, sec. 8(d)); on the contrary, it must be executed in harmony with the substantive laws of the State.
The Emergency Budget Act is therefore not authority for the elimination of any affirmative obligation imposed by statute, such as the AMI program (Ill. Rev. Stat. 1981, ch. 23, par. 7—1 et seq.). Only the legislature would have the authority to do that, by amending the existing statute. The majority is in error in suggesting that Hill v. Relyea (1966), 34 Ill. 2d 552, permits delegation by the legislature of discretion to eliminate affirmative obligations created by statute. In that case this court clearly stated, in the following language, that the legislature cannot permit the executive branch to decide which statutes shall remain effective and which may be disregarded:
“There is a distinction between the delegation of true legislative power and the delegation to a subordinate of authority to execute the law. (Lydy, Inc. v. City of Chicago, 356 Ill. 230.) The former involves a discretion as to what the law shall be; the latter is merely an authority or discretion as to its execution, to be exercised under and in pursuance of the law. (People v. Warren, 11 Ill. 2d 420; City of Evanston v. Wazau, 364 Ill. 198; McDougall v. Lueder, 389 Ill. 141.) It is an established rule that the General Assembly cannot delegate its general legislative power to determine what the law shall be. However, it may delegate to others the authority to do those things which the legislature might properly do, but cannot do as understandingly or advantageously.” (34 Ill. 2d 552, 555.)
The majority has unfortunately overlooked this important portion of Hill v. Relyea.
The majority attempts to avoid this result by contending that, inasmuch as the original 1983 appropriation for “Medical Assistance and Local Ad to the Medically Indigent under Article V [Medicaid], VI [General Assistance], and VII [Ad to the Medically Indigent]” is broken down by types of services rather than by program, there were no AMI line items in the 1983 budget for the defendants to eliminate. Thus, the majority concludes that the adoption of rules by the defendants pursuant to the Emergency Budget Act which effectively halted funding of the AMI program was not inconsistent with the funding scheme which the legislature originally approved. I disagree. The legislature may choose to provide no funding in an appropriation bill for a program which it has established by statute, but that was not the intent of the 1983 appropriation any more than it was the intent of the Emergency Budget Act. The original appropriation bill contemplated only that the service line items provided for be apportioned among Medicaid, General Assistance and Ad to the Medically Indigent pursuant to rules which the Department of Public Ad was free to adopt. It did not anticipate the nonfunding of any of these programs, and the broad discretion it vested in the Department of Public Ad did not permit the Department to cut off funding for any of the programs during the fiscal year, at least without further and specific legislative approval. Under the authorities I have cited above, the State’s substantive obligations under each of those programs remained, and the Department was not free, in the exercise of its discretion, to adopt rules in derogation of those substantive obligations while funds existed to keep them in operation.
The Department would, of course, be free to drastically reduce or eliminate funding for a mandated program such as AMI if money ran so short that it would be impossible to continue funding all similarly mandated programs governed by the same appropriation. That was the situation in Estep v. Department of Public Aid (1982), 92 Ill. 2d 510. However, no such shortfall has occurred here. There is no evidence that, after reserving 2% of the appropriation at issue, the Department would be unable to fund all of the programs covered by the appropriation in a manner consistent with the statutes creating those programs. Even if such a shortage should occur, the Department may at some future date receive an additional appropriation from the legislature. The majority opinion permits the Governor and his department heads to nullify programs virtually as they please under the banner of “discretion,” regardless of legislative authorization and governed only by their own predilections. That is not the way our constitution envisioned that laws would be made, and even if the legislature itself had sanctioned such a scheme I “would have serious doubts as to the constitutionality of such uncabined discretion.” (Stofer v. Motor Vehicle Casualty Co. (1977), 68 Ill. 2d 361, 373.) The courts of this State should not acquiesce in such a radical obliteration by the executive branch of a statutorily mandated program so long as the statute requiring assistance to the medically indigent remains unrepealed by the legislature.
I also disagree with the majority’s disposition of the plaintiffs’ argument that the limitation of inpatient hospital services under the General Assistance program by Emergency Rule 150.40 to $500 per person violates the equal protection clauses of the State (Ill. Const. 1970, art. I, sec. 2) and Federal constitutions (U.S. Const., amend. XIV). Defendants’ position is that the rule was justified by the money it would save. At the very minimum, the test to be used in assessing the equal protection challenge is whether there is a rational basis for the difference in treatment. (United States Railroad Retirement Board v. Fritz (1980), 449 U.S. 166, 66 L. Ed. 2d 368, 101 S. Ct. 453.) Courts generally require that, to satisfy the “rational basis” test, a law or rule must at least either further some purpose of the program or legislation in the context of which it must operate (Stanton v. Stanton (1975), 421 U.S. 7, 43 L. Ed. 2d 688, 95 S. Ct. 1373; Haughton v. Haughton (1979), 76 Ill. 2d 439) or not be inimical to the basic premises of that program or legislation (United States Department of Agriculture v. Moreno (1973), 413 U.S. 528, 37 L. Ed. 2d 782, 93 S. Ct. 2821). It is not enough that the rule challenged here offers the prospect of monetary savings if, in achieving those savings, it subverts the intent of the very legislation it was enacted to further. Emergency Rule 150.40 was designed to operate in the limited context of the General Assistance hospitalization program, which was established to provide “[financial aid in meeting basic maintenance requirements for a livelihood compatible with health and well-being, plus any necessary treatment, care and supplies required because of illness or disability” (Ill. Rev. Stat. 1981, ch. 23, par. 6—1). Defendants do not dispute that the rule will virtually eliminate inpatient hospital services for 110,000 persons, and that those affected will typically be the ones whose treatment needs are the most acute. The rule essentially deprives all but the least seriously ill of hospitalization. The rule not only does not comport with the legislative intention of providing more care to the more seriously ill but actively subverts that intent, and in doing so affirmatively and unjustifiably discriminates against the most seriously ill. This is utterly irrational in the context of a program whose purpose is to treat illness properly; it cannot be upheld in light of the line of cases which requires the government to treat alike individuals who are similarly situated with respect to the purposes of a statute.
The per curiam opinion does not even deal with this argument. Instead it recites only the general rule that the test to be employed in an equal protection context is a rational-basis test. That is all there is to the majority’s analysis. There is no discussion of the facts, no speculation as to what might be the rational basis that defeats the plaintiffs’ claim. Everything is left to the reader’s imagination. All the per curiam opinion tells us is:
“The appropriate standard of judicial review in determining whether plaintiffs were denied equal protection is the ‘rational relation test.’ (United States Railroad Retirement Board v. Fritz (1980), 449 U.S. 166, 174, 66 L. Ed. 2d 368, 376, 101 S. Ct. 453, 458-59.) If there is some reasonable basis for the classification it is not rendered invalid because the classification results in some inequality.
The question of the extent of permissible budgetary limitations is not for us to decide. It has been determined in this instance by the General Assembly and the Governor, and in compliance therewith the Department has adopted regulations pursuant to which the expenditures will be made. Whether the allocation of the funds would be precisely the same were the decision ours to make is irrelevant; the fact that we might disagree does not render it irrational or invidious. We see no constitutional defect in the program and do not agree that plaintiffs have been denied the equal protection of the laws.” (96 Ill. 2d at 12.)
This lack of explanation is a disservice to the plaintiffs, many of whom are seriously ill and left without hospitalization or even medical assistance by this court’s disposition. I expected at the very least that the fact that the $500 threshold figure buys only about 1½ days’ inpatient treatment at Cook County Hospital for a person on Medicaid would underscore the disparity between Rule 150.40 and the legislative purpose expressed in the General Assistance program that the seriously ill who require hospitalization are to receive it, and that this would command the majority’s attention. All that the per curiam opinion does is to cite a general rule of law that courts have the power to supply a rational basis for a law in an equal protection case (United States v. Carolene Products Co. (1938), 304 U.S. 144, 82 L. Ed. 1234, 58 S. Ct. 778), and then it assumes without analysis or specification of any facts that there are facts in this case which satisfy the rule. This, in my judgment, is an abdication of the judicial function that would be intolerable in any circumstance and that certainly should not be excused by the emergency nature of this proceeding.
A final observation is that there is nothing in the record to establish that excluding General Assistance recipients from the hospitalization they require for the period the Emergency Budget Act will remain in effect will actually conserve State funds. At the end of the 120-day period from the date this court vacated the injunction against limiting hospitalization (March 2, 1983) until the date the Emergency Budget Act expires (June 30, 1983) presumably there will be no further limitation on hospital payments, and General Assistance recipients will then again be able to obtain the hospitalization that the Public Aid Code provides for them and which they require. I make this assumption because the defendants have represented the Emergency Budget Act to this court as an emergency measure which will terminate at the end of the current fiscal year. Common sense tells us, however, that by the time those 120 days have gone by, the medical condition of many eligible recipients will have worsened because of lack of attention, with the result that the hospitalization and medical treatment they will then require is likely to be even more extensive and expensive than if they were treated now. This all leads me to question whether there is sufficient rationality to the rule we are considering to pass even the most superficial of rational-relationship tests.