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The Right Note: McAuliffe Tests the Constitution Again

by Mark Kelly May 25, 2017 at 1:45 pm 0

Mark KellyThe Right Note is a weekly opinion column. The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.

It is no secret that Gov. Terry McAuliffe (D) wants to expand Medicaid in Virginia.It is also no secret that the General Assembly will not vote to give him that authority.

It is perfectly ok for the Governor to keep taking his case to the public to try and put pressure on the General Assembly to come around to his way of thinking. He has continually done so, but with no success.

Not only has the General Assembly refused to pass expansion, it has gone so far as to include in its budget a prohibition against any attempt by the Governor to assume that authority through executive action. The Governor has attempted to line-item veto that provision in the budget.

The problem for McAuliffe is the Virginia Supreme Court has held that under our Constitution, a Governor cannot veto a condition of Medicaid without vetoing all of the funding for Medicaid. In light of this well-established precedent, the General Assembly rightly ignored that veto as being improper.

Then earlier this month, McAuliffe issued an executive order instructing state agencies to treat his veto as binding. Now if his administration attempts to implement Medicaid expansion through executive authority, it will open the entire subject up to legal challenges much like his executive order on restoring felon voting rights did — a case he lost for ignoring the law.

Whether you are for Medicaid expansion or against it, it should give you pause when a Governor attempts to do an end run around the Virginia Constitution. Worse yet, the Governor is trying to make this end run with the ultimate goal of re-writing Virginia’s Medicaid laws from the executive branch before he leaves office.

The Governor’s spokesman pointed out the Governor was issuing this executive order because he was elected on his promise to expand Medicaid. What the Governor’s spokesman left out of the statement is that a majority of the General Assembly was elected on the promise not to. And like it or not, they are the branch of government charged with writing the laws.

Democrats who support Medicaid expansion should ask themselves, is it worth establishing a precedent for a future Republican Governor to have power to both ignore line item veto restrictions and rewrite laws over the objection of the General Assembly in the executive branch?

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