We will have more on this later after we’ve had a chance to examine the details, but here’s what we know.
Governor McAuliffe this morning announced that he was going to attempt a line-item veto of the #BLACKorBUST language prohibiting any expenditures on Medicaid expansion without an additional appropriation by the legislature. He further called the legislative commission set up last year to handle Medicaid expansion (MIRC) essentially a sham, and said he would work around them to achieve his goal of expanded Medicaid under Obamacare by September 1, 2014.
As we understand the situation, though, this will not work for two main reasons. First, as we detailed yesterday, even if his line-item veto of the #BLACKorBUST language works, he is still left without an appropriation of funds. He will have to really push the envelope (or just rip it up entirely) to say that he’s got legitimately appropriated funds to do what he’s pushing for. He’d literally be acting lawlessly: without any authority or legislative appropriation.
Second, the line item veto is available only for appropriation items, not for instruction language. The Virginia Supreme Court has defined an appropriation “item” as an “indivisible sum of money dedicated to a stated purpose.” The #BLACKorBUST amendment carried by Bill Stanley is not a sum of money, or even an appropriation; it is instruction against “appropriation or expenditure” specifically designed to close loopholes the Governor needed to act without the legislature. In other words, the Governor’s attempt at a line-item veto is is not valid, and I would expect the Clerk of the House to ignore it for purposes of enrolling the Governor’s response for consideration by the General Assembly. This, of course, sets up a court fight. The law is not a slam dunk in favor of Republicans, but we’ve definitely got the stronger argument. I believe the General Assembly should (and will) act to vigorously protect legislative prerogatives in this matter.
More information and analysis as it becomes available.
40 comments
[…] Papers. Uses that as a segue to talk about the Governor’s very public commitment to do an end-run around the legislature. Calls on his colleagues to protect the prerogative of the legislature, and to avoid setting a […]
[…] will be held to be out of order as unconstitutional. We’ve written at a general level about why that’s the case here, while Brian Schoeneman has a good, highly-detailed analysis […]
I suppose McAuliffe figures, if it’s good enough for POT US it’s good enough for him. We libertarians have been warning about expanded executive power for generations.
Steve, thank you for your intrepid, lucid reporting on the goings on in Richmond. Between TBE and BD, you educate me on what’s happening inside my own state government here in Virginia and I am very appreciative of what you are doing.
Who are you to say he broke the law? You now Judge Albertson? At least he did lie to the people who voted for him? Like now indicted McDonnell did when he said he would not raise taxes to pay for transportation, now did he?
If the Liberal Republican Union spent any time at all talking about jobs and the economy, they mite not have went 0-3 in November.
What is wrong with the VSC deciding this? If they rule in McAuliffe’s favor, you will still say they were wrong?
Look’s like you would have learned something from the SCOTUS ruling on ObamaCare.
You know the Repulican Union is the Party that will not compromise. Tell me something Steve, who is the Sunnis, who is the Shiites, and who is the Kurd’s in this War?
If I were you I would worry about losing the 7th to those evil Dems! You got a candidate who won’t take questions until he is “programmed” and turned into a Union robot.
I guess the Republican Union dialed 911 after that “I don’t have a well crafted response” answer to Chuck Todd? I wonder what Brat would say if one of his students gave him that answer in class?
Wow, Mr. Portugal, try valium, it might help.
Just wow.
“Who are you to say he broke the law? ”
Well, his actions are legally prohibited by the Virginia constitution and fly in the face of what the Commonwealth’s legislative body set forth representing their constituents. It doesn’t take a rocket scientist to figure this out. Using your logic, a man goes into a convenience store and robs it, beats the clerk senseless or worse, and is caught on video tape – he hasn’t broken the law.
“Like now indicted McDonnell did when he said he would not raise taxes to pay for transportation, now did he?”
This has nothing to do with the issue at hand. Just a shifting of the goal post off the subject. Is this a variation on Blame Bush?
“What is wrong with the VSC deciding this? If they rule in McAuliffe’s favor, you will still say they were wrong?”
If he didn’t break the law, why in the world would the VSC be involved? Just like any other case, the Supremes don’t randomly pick things in which to intervene, there is a LEGAL challenge which implies that a law was or was perceived to be broken. The VSC will probably be the ultimate decision on this. That’s the way the law works (see the second paragraph). And if they rule in McAuliffe’s favor, absolutely I will say they are wrong. It becomes legislation from the bench.
“Look’s like you would have learned something from the SCOTUS ruling on ObamaCare.”
Indeed. Legislation from the bench. There are still cases pending in front of the Supremes on Obamacare. Sebelius v Hobby Lobby and Conestoga Wood Specialties Corp v Sebelius to name two along with multiple State Supreme Court cases.
“You know the Repulican Union is the Party that will not compromise. Tell me something Steve, who is the Sunnis, who is the Shiites, and who is the Kurd’s in this War?”
Whut??? This is nothing more than an ad hominem attack. It is the equivalent of a 5 year hissy fit statement of “you have cooties”. It lends nothing to the credibility of your argument.
“If I were you I would worry about losing the 7th to those evil Dems! You got a candidate who won’t take questions until he is “programmed” and turned into a Union robot.
If I were you I would worry about losing the 7th to those evil Dems! You got a candidate who won’t take questions until he is “programmed” and turned into a Union robot.”
Again, with the ad hominem attack along with a shifting of the goal post. This has nothing to do with McAuliffe’s threats. It’s just another chest beating attack. I do offer you a bit of tempered advice on the 7th…be wary of your claims of a conservative defeat. The constituents are weary of the games both the state and the federal government representatives have played on them for years. They have reached their tipping point of enough is enough.
It seems like our side is very often talking about courts, rules, procedures while the Democrats are planning direct action and scripting political theater. They possess no respect for the “process,” just the will to get what they want.
Someone smart needs to be planning how to handle stuff like the governor’s activist allies flooding emergency rooms with poor patients, etc.
“Using your logic, a man goes into a convenience store and robs it, beats the clerk senseless or worse, and is caught on video tape – he hasn’t broken the law.”
Our legal system recognizes the principle of presumption of innocence, or, innocent until proven guilty. If for the Governor, or the example that you cited.
The Governor has broken no laws. The budget does not become law until he signs it.
He vetoed part of the budget. So that part is not law, since basically he took it out. Is it his right to do so? There in lies the dispute to be decided by the courts.
The title Steve choose for this article is another example of Republican tactics. A flat out lie and fabrication to fed to the base what they want to hear, rather than the truth.
Jim, it is unlawful to veto anything but specific appropriations (i.e., a budget “item” as interpreted by the Virginia Supreme Court). The Governor ignored that, and is attempting an end run around the legislature. This is fact. Not a lie, not a tactic, but cold hard fact. You are entitled to your lunatic arm waving, but you’re not entitled to a set of facts that differ from reality.
So you are saying that the governor is not presumed innocent until proven guilty?
Here you go…reading is your friend:
http://www.wjla.com/articles/2014/06/terry-mcauliffe-s-decision-due-on-medicaid-expansion-in-va-budget-104326.html
I’ll tell you what else is a cold hard fact as you say, state senators just do not up and resign in the middle of a political battle over the budget. That is a cold hard fact and hopefully the FBI to DOJ will be able to find the snitch and they will sign like a canary and tell what really happened?
And again, shifting of the goal posts.
Well, the deal with the Senator resigning, the timing, etc., that is moving the whole football field to another continent!
Using your same legal argument about Gov. McAuliffe being guilty before any charges are filed?
Does your legal argument also apply to Gov. McDonnell? Is he already guilty before trial Steve?
Virginians seem to be in the dark in that, unlike the Federal Government, we have to have a balanced budget and our shutdown will be a real thing, meaning everything outside of emergency services will close for business. Citizens need to call the Governor’s office and demand he sign a budget free of Medicare expansion. I am sure Mark Warner would love for Virginians to spend the next 4 1/2 months talking about the pros and cons of Medicare expansion and Obamacare that he supported.
The Medicaid expansion issue will be used as a testing ground for state executive powers. It’s s win win for the Democrats: either Republicans look mean for months fighting against sick people, or a Democrat Governor achieves dictatorial power.
Gee, I wonder who his role model is for such lawlessness?
As always Steve, good stuff. Very informative and right on the money. Thanks for continuing to post quality articles.
Thank you, Timothy! I’ll do my best! 🙂
A very clear exposition on likely course of events. If this does go the judicial route does the governor have any latitude in shopping the venue a frequently employed tactic of the Obama Administration and it followers?
Unlikely this gets resolved anywhere but the Virginia Supreme Court.
Well this is fairly clear cut case against the Gov. from precedent at least. Its likely the Virginia Supreme Court will want to take the case because of its importance, but they don’t have to. (and it would be up to those challenging it to choose the venue of the lower courts I believe)
Yes, it could have been decided with compromise. But that avenue was blocked by the Republican Party.
Can’t find much case law regarding this (without access to PACER) but as far as I can tell from Brault v. Holleman 217 Va. 441 (1976) any member of the legislature has standing to sue the Governor on this. Steve you mention that the Clerk can “ignore” communications from the Governor which I imagine would then put the ball in his court as a plaintiff. I assume that would also make Mark Herring the plaintiff’s attorney, which would be pretty sweet given how awful an attorney he is, but they do get to be the plaintiff.
Do you have a listing of case law citations that are relevant to this? I assume you do, being one of those elite members of the bar and all…
I’ll be posting on what I know about this as soon as I’m able, but it does indeed all come down to the courts.
That’s rather scary since our courts can’t be trusted to follow the law.
“Trusted” no, but they usually get it right, just not all the time. Especially with such clear precedent as in this case…
thanks a bunch
We’ve basically got three major cases.
Brault v. Holleman
Gilmore v. Landsidle and
Commonwealth v. Dodson (Under the 1902 constitution)
These case were brought by official state actors such as members of the general assembly. It is conceivable that a citizen could bring such a case, but the Supreme Court would likely reject it on standing grounds.
I’ll post links to the cases separately as sometimes they get eaten by a spam filter.
Don’t underestimate the deputy attorneys general.
cases:
https://www.courtlistener.com/va/6r8U/gilmore-v-landsidle/
http://www.leagle.com/decision/1976468230SE2d238_1467.xml/BRAULT%20v.%20HOLLEMAN
http://va.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19401014_0040022.VA.htm/qx
Dodson is a rather strange decision, citing all sorts of cases outside of Virginia. I imagine the applicability in terms of the Virginia Constitution is quite limited.
I love this part of the opinion: “While the Governor is empowered to veto any particular item or items of an appropriation bill, he must, for his veto to be valid, strike down the whole of an item; he cannot disapprove part of an item and approve the remainder…. Where a condition is attached to an appropriation, the condition must be observed. The Governor cannot veto the appropriation without also disapproving the condition; correspondingly, he cannot veto the condition without also disapproving the appropriation.”
That language he wants to veto is in budget Item #301 so if the Gov. wants to line item veto it, he can, he just needs to also veto all $8.4 billion dollars worth of Medicaid funds in the state at the same time….
T-Mac:
Vetoing judgeship appropriations. Citizens apparently don’t need access to the court system.
Vetoing all of MIRC appropriations. Good riddance.
Vetoing funding for the ethics commission. It’s funny because his attitude is that he sees the need for an even stronger ethics authority, just no further restrictions on the Governor’s Opportunity fund. See “My Administration and their families live under a $100 gift band.[sic]”
The funniest is that he is not vetoing appropriations for the new general assembly building. He is just unilaterally refusing to continue the appropriated renovations. Since this isn’t a veto, he threw it in just to be a jerk.
Source:
https://governor.virginia.gov/news/newsarticle?articleId=5216
As far as I can tell he has not submitted the signed budget with the vetoes back to the House yet.
Cant sue until he does….
Paul: “just to be a jerk.” No kidding! Reminds me of where he says in his book, “Let me tell you, it’s a lot easier to raise money for a governor. They
have all kinds of business to hand out, road contracts, construction
jobs, you name it.” He knows, in the words of Obama, how to reward his friends and punish his enemies.
That Carpetbagging Tyrant’s Vassal needs a judicial smackdown of the first degree, or his lawlessness will just continue to get worse.
Come on, General Assembly, it’s time to get serious about defending your constitutional responsibilities against all enemies, foreign and domestic. Remember your oaths.
Called it!