Let’s scramble the deck on Medicaid expansion.
In Wednesday’s Washington Post, Paul Goldman and I write that behind all the hand waving, posturing, and blood oaths are two, 2013 legal opinions from then-Attorney General Ken Cuccinelli that could fundamentally alter the political landscape. How? The Medicaid Innovation and Reform Commission — the august panel of worthies given the power to decide Medicaid’s fate — is unconstitutional:
On Feb. 22, 2013, Cuccinelli wrote an official legal opinion in response to a request from Del. Ben Cline (R-Rockbridge) regarding a hypothetical compromise on Medicaid needed to get the Republican-controlled state legislature to back GOP Gov. Bob McDonnell’s transportation tax hike. Under the proposed deal, the General Assembly would create the Medicaid Innovation and Reform Commission (MIRC). MIRC – and not the governor — would then have the power to decide whether to expand Medicaid. According to Cline, MIRC membership might range from three to six lawmakers from each legislative house.
“It is my opinion,” Cuccinelli wrote, “that the Virginia Constitution prohibits the General Assembly from delegating the final legislative authority regarding budget or other enactments to a committee comprised of a subset of the members of the General Assembly.”
The General Assembly rejected Cuccinelli’s advice. It created MIRC anyway. The membership consisted of five voting members from each body, with two nonvoting gubernatorial cabinet members. A separate majority vote of lawmakers from both the House and the Senate would be required to expand Medicaid as envisioned by Obamacare.
A month later, on March 22, Cuccinelli wrote another opinion on the actual MIRC legislation in response to a request from Del. Bob Marshall (R-Prince William). “I conclude,” he wrote, “that this particular method violates the Virginia Constitution.”
MIRC, then, is abhorrent to the constitution and should — purely on principle — be wiped from the books.
But even if it is, does that then give Terry McAuliffe all the room he needs to expand Medicaid by himself? No, it doesn’t, which may help explain why McAuliffe hasn’t pressed the issue so far.
Putting the constitutional screws to MIRC, though, would do one other thing: it would put the GOP on the spot to actually come up with Medicaid solutions.
They have hemmed and hawed around the issue for months — I asked for the roughest of outlines of a plan back in December. I’m still waiting.
Take away the MIRC, and all of a sudden, Republicans have to show their work. Not platitudes.
Considering how strongly the incumbents are motivated by fear of primary challenges, I suspect their work would actually be both innovative and reform-minded. Heck, it might even take a few chances.
But those are almost side issues for me. The real matter? MIRC needs to go. Fire up the lawsuits.
