by Dick Hall-Sizemore

Another dispute between Gov. Glenn Youngkin and the General Assembly, one that has faint echoes of one occurring north of the Potomac, has taken on a larger life with parties turning to the Virginia Supreme Court.

Before going into the details, some background would be helpful. The Virginia Constitution provides, “The Governor shall have the power to veto any particular item or items of an appropriation bill.” The “item veto” is a powerful tool for the governor, but it is not an unlimited one.

The authorization of an item veto has been discussed in some detail earlier on this blog, therefore there is no need to go into that detail here. In summary, the Virginia Supreme Court, in Brault v Holleman, laid out the parameters on the item veto power:

“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.”

The Clerk of the Virginia House of Delegates is a unique position. By law he is designated the “Keeper of the Rolls.” The law gives the Clerk the responsibility of keeping the originals of all bills that have been passed and signed by the Governor. It also directs the Clerk to “enroll all of the acts of the General Assembly and joint resolutions proposing amendments to the Constitution by such other permanent and substantial method or methods as he may deem proper; and shall have the enrolled acts bound for publication after they have been signed by the Speaker of the House of Delegates and the President of the Senate.”

It was in his capacity as the Keeper of the Rolls that Paul Nardo, the Clerk of the House of Delegates, notified Gov. Glenn Youngkin that he was not including three of the governor’s item vetoes in the Appropriation Act that would be enrolled and published in the 2025 Acts of Assembly. Citing Brault and the analysis which led him to conclude that the item vetoes were in conflict with that decision, Nardo concluded, “For these reasons, each of these three purported vetoes are not in conformity with the requirements of Article V, Section 6 [of the Virginia Constitution] which restricts a Governor’s veto authority within an appropriation bill to an entire item. Accordingly, I am duty-bound not to publish them.”

This is not the first time that Nardo, as Clerk of the House, has refused to acknowledge an item veto issued by a governor. In 2017, Nardo informed Gov. Terry McAuliffe (D) that he would not publish two of the governor’s item vetoes, one of which was meant to veto language preventing the expansion of Medicaid without General Assembly approval. Nor is Nardo the first Clerk to take this position. The Brault decision itself was the result of the Clerk not including an item veto in the final enrolled bill.

One of the item vetoes at issue in Nardo’s letter to Youngkin dealt with increasing Medicaid payments for nursing homes. In its conference report on the budget, which was adopted by the full legislature, the General Assembly provided an additional $10 million from the General Fund “to increase Medicaid rates for nursing facilities”, along with language setting out the methodology for allocating the money. 

Gov. Youngkin declared he was vetoing this item. (It is Item 288.VVVV on the list of vetoed items.) In his explanation of his veto, the governor explained that his introduced budget contained an additional $40 million for enhanced Medicaid payments to nursing homes. Pointing to the additional $22 million (over half of which was federal money), he asserted, “Given my fiduciary responsibility to Virginia’s taxpayers, it would not be fiscally prudent for me to expand ongoing programmatic expenditures at this time.”

The governor’s potential problem is that the item for which he issued his veto was entirely new language; it set out the conditions under which the state Medicaid agency was to reimburse nursing homes, which would have the effect of increasing their overall reimbursements. There was no amount of money referenced in the language. The governor was aiming at the additional appropriation, but it had been folded into the overall appropriation for Medicaid and there was no direct tie in the enrolled bill language between the additional appropriation and the new language in the bill, which the item veto affected.

That is where the governor’s action ran into a possible confict with the Brault decision. As Nardo explained in his letter to Youngkin:

“The language of paragraph VVVVV is not an item in the constitutional sense, but rather conditions DMAS funding for Medicaid program services on modifications to nursing facility direct care base rates using a methodology the legislature deems appropriate. Once again, by failing to capture the sum of money appropriated for Medicaid program services that is conditioned by the language in paragraph VVVVV of Item 288, pursuant to Brault, the purported veto is constitutionally invalid because a Governor ‘cannot veto the condition without also disapproving the appropriation.’”

As a result, Item 288 of the official Appropriation Act, Chapter 725, includes the new paragraph VVVV agreed to by the General Assembly, the governor’s item veto notwithstanding.

Gov. Youngkin was outraged and defiant. As reported by the Washington Post, he declared, “These vetoes are wholly consistent and compliant with my authority under the constitution and, therefore, these vetoes will stand. And that’s how we’re going to run the executive branch going forward — with these vetoes standing.”

House Democrats fired back, with Speaker Don Scott (D-Portsmouth), declaring, “Now, the Governor (lame duck) is doing the same thing here in Virginia that Republicans are doing in Washington, DC — ignoring the law, shutting down nursing homes in rural communities and denying needed medications funded by Medicaid.”

It is likely the Virginia Supreme Court will have the final word. According to the Virginia Mercury, the nursing home industry has announced that it will file with the Court a suit challenging Youngkin’s refusal to recognize the new funding procedure.

Paradoxically, in spite of his opposition to increasing the nursing home reimbursement rate, Gov. Youngkin has recently recognized the significant number of complaints regarding nursing homes received by the state, including those dealing with “immediate jeopardy to nursing home residents.” He issued an executive order directing the Dept. of Health and its Office of Licensure and Certification to fill vacant inspector positions.