GOP Analysis: Gov. Lacks Authority to Unilaterally Expand Medicaid
The battle over Medicaid expansion continues to heat up.
Republican House leaders hired outside legal counsel to boost their case, and that Washington, D.C.-based attorney, Paul Clement, says the governor cannot grow the program without General Assembly approval.
Clement, a former U.S. solicitor general, was hired under the direction of the Speaker of the House William Howell. He and other Republican leaders say they have been growing very concerned with Governor Terry McAuliffe’s intentions to pursue Medicaid expansion. The law firm released a report Wednesday that concludes choices like this involving financial decisions can only be made by the legislature, based on Virginia constitutional and state law.
The Republican-controlled General Assembly did not include Medicaid expansion in the two-year spending plan, leading McAuliffe to say he will do whatever he can to move forward with it.
"Last week, the governor made it very clear that he intends to ignore the will of the people and their elected representatives by trying to unilaterally implement some form of Medicaid expansion in Virginia,” Howell said.
Howell says Clement and his law firm received $25,000 as compensation for the analysis.
The governor responded to all of this in a statement, saying he and his staff are looking into legal expansion options. He also says, by seeking outside legal counsel, Republicans continue to detract from providing life-saving health care to Virginians who need it.
VA House GOP Press Release
RICHMOND, VA – Virginia House of Delegates Speaker William J. Howell (R-Stafford) and House Republican leaders released a legal analysis Wednesday on Governor Terry McAuliffe’s clear lack of authority to unilaterally implement Obamacare’s Medicaid expansion in Virginia. Paul D. Clement, a former United States Solicitor General who has argued more Supreme Court cases since 2000 than any lawyer in or out of government, and Erin Murphy, an experienced Supreme Court attorney, wrote the analysis.
“Whether to extend Medicaid coverage to individuals who do not fit the current statutory requirements established by Virginia law is a quintessential legislative decision. Nothing in Virginia statutory or constitutional law empowers the Governor to make that decision unilaterally, let alone to execute that decision without the requisite appropriation of funds from the General Assembly,” Clement and Murphy write in their eight-page analysis. “[T]here is simply no constitutional path for the Governor to expand Virginia’s Medicaid program without obtaining the requisite authority and appropriation of funds from the General Assembly to do so.”
Commenting on the analysis, Speaker Howell said, “Paul Clement is one of the most successful and well-respected legal minds in the country. He has a breadth of experience with constitutional law and the separation of powers at the federal level, as well as significant experience in state courts. His detailed and thorough analysis, based on the requisite statutes, case law, and the Constitution of Virginia confirms what we have believed for months: Governor McAuliffe simply does not have the legal or constitutional authority to do what he says he is going to do. Knowing this, we are prepared to challenge the Governor through all available avenues, including the court system.”
“This sound legal analysis thoroughly explains why the decision on Obamacare’s Medicaid expansion rests with the General Assembly, not the Governor,” said Delegate Rob Bell (R-Albemarle). “There are three co-equal branches of government, and the authority to make laws and spend money rests exclusively with the legislative branch. Governor McAuliffe has announced his plans to unilaterally pursue Medicaid expansion, which would defy this intrinsic understanding of the role of government, as well as a plain reading of the Constitution and Virginia law. His actions should frighten anyone interested in preserving the rule of law, checks and balances, and separation of powers.”
“Governor McAuliffe has openly stated he intends to defy the legislative branch, as well as the laws and Constitution of the Commonwealth by unilaterally implementing Obamacare’s Medicaid expansion in Virginia. This analysis details exactly how and why the Governor is blatantly overstepping his legal and constitutional authority,” said House Majority Leader Kirk Cox (R-Colonial Heights). “As the people’s elected representatives, the legislative branch cannot idly allow this executive power grab. It violates every notion the people of Virginia hold about the rule of law, separation of powers and representative democracy.”
“The Constitution solely reserves to the legislative branch the power to appropriate and spend the people’s tax dollars,” said House Appropriations Committee Chairman S. Chris Jones (R-Suffolk). “By attempting to unilaterally expand Medicaid, the Governor will no doubt have to expend funds that the General Assembly has not authorized. Doing so is a violation of the Constitution and an imposition of the executive branch on the constitutionally prescribed powers of the legislative branch that we simply cannot allow.”
In their analysis, Mr. Clement and Ms. Murphy detail the Supreme Court’s decision on the Affordable Care Act, applicable Virginia law related to Medicaid, the Constitution of Virginia and requisite case law. The full analysis can be viewed here.
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