by James A. Bacon
We live in truly extraordinary times in Virginia. Never in my 61 years have I had occasion to ask myself, “Do Virginians believe in the rule of law or the rule of men?”
Governor Terry McAuliffe exercised his prerogative as governor yesterday to veto portions of the state budget passed by both houses of the General Assembly. Among the items he nixed was $20 million in funding for about 35 vacant or new judgeships. As I understand the state constitution (and I am no expert) he was fully within his rights to do so. Republicans can wail and gnash their teeth at the injustice or foolhardiness of it all, but nobody questions the fact that Virginia’s governor possesses the right to exercise a line-item veto.
More controversially, McAuliffe vetoed language in the budget bill specifying that Virginia’s Medicaid program cannot be expanded unless the General Assembly explicitly appropriates money for it. “The amendment is unnecessary,” he stated, “given its intent to restrict an appropriation that does not exist anywhere in the budget.” Republicans argue that the governor can veto the entire budget bill or he can veto specific appropriations but he cannot veto language in the bill that he does not like. Again, I am no constitutional law expert but the Republican argument seems plausible. The issue could well wind up being decided by the ultimate arbiter on state constitutional questions, the Virginia Supreme Court.
Then there is McAuliffe’s promise to find a way to bypass the will of the legislature and enact Medicaid expansion on his own authority. The money is there for the taking, with 100% of the funding provided by the federal government for the next few years under the provisions of the Affordable Care Act. The problem is that Medicaid is administered by the state and any federal pass-through funds must be incorporated in the state budget, which under any traditional interpretation of the state Constitution requires legislative approval.
Calling expanded health care coverage a “moral imperative,” according to the Times-Dispatch, McAuliffe directed Secretary of Health and Human Services Bill Hazel to give him a plan by Sept. 1 on “how we can move Virginia health care forward even in the face of the demagoguery, lies, fear and cowardice that have gripped this debate for too long.”
Sen. Donald McEachin, D-Henrico, chairman of the Senate Democratic Caucus, vowed that Democrats would stand behind the governor “like a solid wall.” Reports Michael Martz with the T-D:
McEachin, a lawyer, also supported McAuliffe’s vow to expand health coverage by unspecified executive actions. “I’m comfortable with the legality of it,” he said, while declining to say how the governor plans to proceed.
I cannot imagine what novel legal doctrine Democrats might call upon to eviscerate the power of the legislature, but they can rest assured that they will face a battle royal from Republicans who will regard any such effort as an attempt to usurp the legislature’s constitutional powers.
McAuliffe appears to be modeling himself after President Barack Obama who, frustrated by his inability to get his legislative agenda through a hostile House of Delegates, has chosen to rule by executive action. The most notable of his unilateral actions has been expansion of the regulatory purview of the Environmental Protection Agency from air pollutants enumerated by the Clean Air Act to carbon dioxide, a chemical essential to life on the planet, on the grounds that CO2 contributes to global warming.
Impressed by the moral righteousness of their causes and contemptuous of Republicans who in their “demagoguery, lies, fear and cowardice” resist their efforts to re-engineer the nation according to their wishes, Democrats seem increasingly willing to dispense with the niceties of constitutional law. Rest assured, if the shoe were on the other foot — if, say, Sarah Palin or Ken Cuccinelli attempted to impose their agenda by such means — they would be howling that Republicans were dismantling the republic. Frankly, I am amazed how subdued the Republican reaction has been so far.
While McAuliffe calls them demagogues, liars and cowards, they have refused — so far — to respond in kind. But if the governor sticks to his guns and tries to impose Medicaid expansion against the wishes of the electorate (if we believe the polls) and both houses of the General Assembly, it won’t be long before people start calling him an usurper and tyrant. He had better watch himself. His power grab could generate so much ill will that the Republican-dominated legislature will cut him off at the knees in any way it can. He will find himself a lame duck governor a mere half year into his administration.