Va. AG: Commission set up to expand Medicaid unconstitutional

By Jessica M. Karmasek | Mar 27, 2013

RICHMOND, Va. (Legal Newsline) -- Virginia Attorney General Ken Cuccinelli, in an opinion issued last week, says lawmakers' method of expanding Medicaid in the state is unconstitutional.

In a six-page opinion in response to state Delegate Robert G. Marshall, R-Prince William, Cuccinelli said the General Assembly does not have the authority to delegate its legislative authority to a smaller committee.

Marshall requested the opinion in regard to the constitutionality of the General Assembly's designation of a "Medicaid Innovation and Reform Commission."

The commission makes the final determination as to whether Virginia will expand Medicaid consistent with the terms of President Barack Obama's federal health care law.

In particular, Marshall questioned whether the General Assembly could delegate this authority to a smaller group of, mainly, legislators.

Cuccinelli said under the state constitution it cannot.

"The purpose behind the requirements of Article IV, Section 11 regarding budget matters is self-evident. They seek to promote transparency and accountability when the General Assembly utilizes its powers regarding taxing and spending. The provisions assure a citizen that a majority of the members elected to both houses actually support the enactment and ensure that citizens can know exactly how their representatives (and all of the other representatives) voted on the issue," the attorney general wrote in his opinion Friday. "Delegating final decision-making authority to a subset of the General Assembly removes these safeguards.

"Thus, while the General Assembly has the authority and responsibility to pass legislation related to budgetary matters such as Medicaid expansion, it may exercise that power only consistent with the provisions of Article IV, Section 11 and may not delegate the decision of whether a budgetary enactment, or some part of an enactment, becomes effective to a subset of its members."

Cuccinelli, who is seeking the GOP nomination for governor, vehemently opposes Obama's Patient Protection and Affordable Care Act.

The conservative attorney general, just months after taking office in January 2010, filed his own lawsuit against the ACA. He was the very first to sue over the reform.

The law's mandate requires individuals who do not purchase health insurance to pay a yearly $695 penalty. Cuccinelli, in his suit, argued that the mandate clashed with the Virginia Health Care Freedom Act, which says Virginians are not required to purchase health insurance.

The U.S. Court of Appeals for the Fourth Circuit eventually ruled that Cuccinelli did not have standing to challenge the law on behalf of the state of Virginia because the state wouldn't be affected by the mandate. Only individual Virginians would be, the court said in overturning a district judge's ruling.

In its highly-anticipated ruling in June, the U.S. Supreme Court said the controversial provision is a constitutional tax.

Marshall said in a statement he was pleased with Cuccinelli's finding, and hoped that Gov. Bob McDonnell will remove the "unconstitutional piece of maneuvering" from the budget before it comes back to the General Assembly.

"Medicaid needs serious reform before we can even begin to consider expansion and the decision about when those reforms are sufficient can and should only be determined by the General Assembly as a whole," the lawmaker said.

"I congratulate the attorney general for his correct reading of the Virginia Constitution and appropriate case law at a time when many were urging him to dodge this question or issue a politically expedient opinion so as to avoid controversy in his gubernatorial campaign.

"I congratulate him for standing up for the Constitution and the people of Virginia."

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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