As we reported last night, former Democrat Senator Phil Puckett’s sudden retirement from the Senate appears to have broken the logjam on the budget, with a unanimous restored GOP majority apparently committed to passing the House version of the budget, stripped of the Senate’s “Marketplace Virginia” Medicaid expansion provisions.
THE PROBLEM
This is the so-called “clean budget” that House leaders have been asking for. But just how “clean” is it?
Not very clean at all. In fact, it still contains the language Gov. McAuliffe would likely rely upon for the authority to implement Medicaid expansion on his own. This is language—originally crafted as part of a deal to get Democrat votes for Gov. McDonnell’s tax hike and transportation spending package—that conservative leaders Del. Ben Cline (R-Amherst) and Del. Bob Marshall (R-Prince William) tried to strip out of the budget in the House earlier this year, before they got shot down.
Folks, if Republicans are serious about stopping Medicaid expansion, and about keeping this lawless executive Terry McAuliffe from doing it on his own, then Republican legislators must act. If conservatives in the Senate vote for the House budget without fixing this backdoor for the governor, then they will be held responsible for allowing Terry McAuliffe to get away with expansion.
ANALYSIS
To understand this, you must check out Section 301, Subsection TTT of the budget passed by the House, which can be found here. This budget language originally came from the McDonnell administration as part of the Republican-led tax hike and transportation spending package last year, when they needed Democrats on board to pass it. The first paragraph authorizes the executive branch to secure necessary waivers or authorizations from the feds for a series of reforms, and then to implement those reforms. Then, the budget language sets out what those reforms are (reforms which, according to Health Secretary Bill Hazel, have already been completed).
In paragraph 6, the language instructs the Medicaid Innovation and Reform Commission (see here for background) to vote to implement Obamacare’s Medicaid provisions if the reforms in paragraphs 2, 3, and 4 have been met. Then comes some language on accounting and disbursements that is “contingent” on expansion under paragraph 6.
What is not made contingent on MIRC’s vote is paragraph 9, which reads as follows:
9. There is hereby appropriated sum sufficient nongeneral funds for such costs as may be incurred to implement coverage for newly eligible individuals pursuant to 42 U.S.C. § 1396d(y)(1)[2010] of the Patient Protection and Affordable Care Act.
Now, stick with me. Republicans have been arguing about the governor not having budget authority to either run state government or to expand Medicaid without an appropriation from the legislature. And, of course, that’s correct under the state Constitution. But with this provision in the budget, McAuliffe can say with a straight face that the appropriation has already been made. It’s not contingent on action or inaction by MIRC—unlike other provisions of the same section—and has no limitation or caveat.
The only real argument that the governor can’t touch this money is one that says only MIRC has the authority to “implement coverage for newly eligible individuals.” But the construction of the language on that is exceptionally weak. Paragraph 6 reads as follows (streamlined bracketed language substituted):
The [executive branch] shall seek the approval of the Medicaid Innovation and Reform Commission to amend the [State Medicaid Plan] to implement coverage for newly eligible individuals pursuant to [Obamacare]. If the Medicaid Innovation and Reform Commission determines that the conditions in paragraphs 2, 3, 4, and 5 have been met, then the Commission shall approve implementation of coverage for newly eligible individuals pursuant to [Obamacare].
So, the administration must “seek” approval…not “gain” or “receive” or “secure” or “obtain,” just “seek.” There is no clear language anywhere that says MIRC must approve before expansion can happen. One can argue that is the intention of the language, but one can just as easily argue that it is vague enough to skirt, especially when the statute establishing the MIRC only endows it with the authority to “endorse” reforms and waivers. Read it closely. It flatly DOES NOT give MIRC gatekeeper authority on approving expansion. In fact, this is why Gov. McDonnell continued to say he had the authority to expand Medicaid on his own, even after the MIRC was established.
How hard is it to draft clear language? Not hard. For example, the budget could read, “Approval of the Medicaid Innovation and Reform Commission shall be obtained before any implementation of coverage for newly eligible individuals.” But some folks would apparently rather not have that level of clarity. Curious, no?
CONCLUSION
So, to the good, conservative members of the Virginia Senate who oppose the expansion and entrenchment of Obamacare in Virginia, we implore you to truly make the House budget a “clean” budget. Don’t pass a dirty budget that facilitates an end run around the people’s representatives. Take the time to read Section 301, Sub-section TTT (and Sub-section NNN while you’re at it). Then fix it by making it clear these provisions do not allow the governor to act without prior approval of the legislature. Keep this decision where it belongs: in the hands of America’s oldest and greatest representative body, not in the hands of a lawless executive.
We’re watching.
UPDATE: I’ve gotten the question from a couple of different people asking, if the Governor has the authority to expand Medicaid on his own, why doesn’t he just do it? Why not just give the Republicans a clean budget and walk away?
It’s a good question. In response, the main answer is that there are political and legal risks associated with a unilateral expansion by the governor. He would be doing a very public end run around the legislature, and could be damaged by that. He also might get sued to block him. Read here for more on his possible strategy on this. Clearly, he’d rather get expansion via the legislature, but if he can’t get it through the GOP House (and there is no indication he can), then he’s likely to pursue any avenue available to him.
If you hear a legislator tell you that the Governor doesn’t have the authority, they’re likely just repeating what they’ve been told. Ask them to personally read the language closely and get back to you. Then ask them why, when we now have both houses, and with all of the talk about the Governor acting unilaterally, Republicans shouldn’t act to affirmatively strip the governor of whatever authority he and his lawyers might think he has (and that Gov. McDonnell continued to claim he had)? Why the resistance to such steps? Seriously…you’re either against Medicaid expansion, or you’re for letting the Governor do it so that you don’t have your fingerprints on it. But now, the jig is up on that latter option, and it’s time for you to do the right thing by your constituents who expect you to stop the expansion and entrenchment of Obamacare.
