A court may strike down the law if that balance is not maintained, she notes. "Some of the language in the request would allow the DHS to change any Medical Assistance law, for any reason, at any time, and potentially without notice or public hearing," she writes. "Aside from the practical problem that only DHS would know what the law is at any given time, this may create an impermissible delegation leading a court to invalidate the statute."

In a second drafter's note dated February 1, Dodge repeats her earlier concerns: "As I mentioned in my last drafter's note, this request raises potential constitutional issues regarding the separation of powers."

The memos were directed to Marta Skwarczek, a Department of Administration budget analyst.

Dodge also commented in the Feb. 1 memo that Skwarczek told her that the DHS legal counsel had requested emergency rule making provisions that would eliminate notice and publication requirements and leave the emergency rules in effect indefinitely, "without any requirement to make permanent rules and without any time limit, except that imposed by DHS, and with no indication in the statutes that the law has changed at the will of DHS."