McAuliffe Actions Create Virginia Constitutional Crisis

The fight over Medicaid expansion in Virginia just got a lot hotter.  It wasn’t enough to just try to expand Medicaid, Governor McAuliffe has to go and foment a constitutional crisis, too.

In what is likely one of the most blatant examples of executive overreach in Virginia history, Governor Terry McAuliffe today issued an Executive Order designed to side step the Virginia General Assembly’s refusal to recognize two improper line item vetoes in the Virginia budget.

This particular fight is centered primarily around the Stanley Amendment, a provision included in the budget that was designed to remove any ambiguity over the power of the Governor to expand Medicaid within Virginia outside of a specific grant of authority to do so by the General Assembly.  The amendment specifically attached a condition to the entire budget to the effect that no funds included in the budget could be used to expand Medicaid under Obamacare.  Another provision attached conditions to the budget of the Secretary of Transportation.

McAuliffe moved to veto the two provisions, citing the Governor’s line-item veto authority in Article V Section 6(d) of the Virginia Constitution, which reads: “The Governor shall have the power to veto any particular item or items of an appropriation bill, but the veto shall not affect the item or items to which he does not object.”

Here’s the rub – the Virginia Supreme Court has long held that an “item” for the purposes of the line-item veto has to include an actual appropriation of money, not simply conditions made on the appropriation itself.  For instance, if the General Assembly appropriated $1,000,000 to Bearing Drift for excellence in political commentary, on the condition that Brian Schoeneman be kicked off the site for being a filthy RINO, the Governor could not veto the condition (kicking me off) without vetoing the appropriation itself.  That’s because the appropriation and the conditions together are considered an “item” for constitutional purposes.  You want to veto one, you have to veto both.  There’s no way around it.

The Supreme Court has been clear on this precedent for over seventy years.  The Supreme Court first construed the line-item veto in Commonwealth v. Dodson, 176 Va. 281 (1940), a ruling under Virginia’s Jim Crow 1902 Constitution, holding that “items,” for the purposes of the line-item veto, had to include both the appropriation and the conditions, and struck down six vetoes for violating that premise.  Decades later, after the passage of the current 1971 Constitution, the Court wrote specifically in Brault v. Holleman, 217 Va. 441 (1976) that “[w]hile 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. And this rule prevents the Governor from reducing the amount of an appropriation which by itself constitutes an item. 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 condition; correspondingly, he cannot veto appropriation.” Brault at 447.

In this situation, the Stanley Amendment represented a condition on the entire budget – McAuliffe couldn’t veto the condition without vetoing the entire budget itself.  The condition on the Secretary of Transportation’s budget would have required a veto of the Secretary’s entire allocation.

All of this was explained directly in a letter sent by Clerk of the House of Delegates Paul Nardo to the Governor back on May 3.

The refusal of the Clerk of the House to record invalid line item vetoes is a long standing precedent of the House.  In fact, it has happened five times since 2003, and has already happened once, last year, to Governor McAuliffe, on this exact same issue.  Neither Governors Warner nor Kaine criticized the House Clerk at the time for refusing to enroll vetoes that did exactly what McAuliffe’s veto here did – tried to veto a condition on spending without vetoing the spending.

Despite the clear implication of the Supreme Court’s holdings in regards to line-item vetoes, McAuliffe refused to take no for an answer.  Instead, today, he issued a nonsensical Executive Order, directing the executive branch to pretend that his vetoes took place.  The EO directs all Executive Branch agencies to recognize and abide by the terms of the vetoes he submitted.  In what reads like the kind of language you’d see in a Presidential executive order, McAuliffe ignores the valid constitutional issues presented by Clerk Paul Nardo and instead claims that the motivation behind his refusal to enroll invalid vetoes is because the General Assembly is “[f]rustrated by my successful veto of 120 of their bills…” and that “General Assembly members have resorted to legislating through the budget, using the appropriations power to change existing law in Virginia.”

The last charge is simply unfair, as legislatures have been attaching conditions to spending bills for as long as there have been legislatures, going back to Magna Carta.  The idea that this represents “legislating through the budget” is absurd.

The entire premise of the Governor’s objections and action taken here is as absurd as it is unprecedented.  Never before has a Virginia Governor directed the Executive Branch to pretend a law exists that doesn’t.

What’s also odd about this whole thing is the timing.  McAuliffe has attempted to veto the Stanley Amendment twice now – one in 2014, and once in 2016 – and has been unsuccessful both times.  In 2014, Speaker Howell ruled the veto out of order from the dias, and in 2016, Clerk Nardo sent a similarly worded letter explaining their rationale.  McAuliffe didn’t take this step in either situation, so why do so now, at the end of his Governorship, when there is zero chance that the GA will approve a Medicaid expansion?  Why manufacture this crisis now?

This executive order puts the General Assembly and the Executive Branch on a collision course – one that can only be resolved by the courts.  This EO represents a direct attack on the legislature, and you can rest assured they will respond forcefully.  Speaker Bill Howell has already made it clear that this EO is worthless, saying in a statement that “[t]he idea that an executive order can supersede the Constitution, decades of Supreme Court precedent, and longstanding legislative practice is nonsensical. This is the culmination of four years of executive overreach, disregard for the law, and contempt for a duly elected branch of government by this governor.”

This Executive Order also represents a futile capstone to McAuliffe’s failed governorship.  Perhaps this is the final flailing effort of the Governor to grasp at some kind of legacy, but like his only other real achievement – the restoration of rights effort – it will be tarnished by his desire to cut corners and play fast and loose with the Virginia Constitution.  When this issue hits the courts, this EO will likely be overturned.

The last thing Virginia needs, especially in the middle of a gubernatorial election (and perhaps that’s the real reason why he did it), is a Constitutional crisis – especially one where the Governor is so clearly in the wrong.

  • James Young

    This is Verry McAwful attempting to manufacture another election issue … the same thing he tried to do to boost Hillary’s campaign last year by playing sexual politics with the Virginia Supreme Court.

  • ameri…canwork

    Here we go Republicans always seek to stop medicaid expansion, yet these same Republicans foster the illegal commerce and illegal employment creating suppressive wages and job loss and many detrimental effects that come along with it.
    Governor McAuliffe is doing a fine job
    I expect the Republican Gubernatorial nominee who wants to cut DPOR Regulations don’t know his own but from a hole in the wall when it comes to McAuliffes Executive order 24.
    At least the Governor is actually doing something compared to the last Republican Administration in Va.
    When will Va.Republicans grow a spine and end Santurary Employment in Va. http://watchdog.org/202012/subcontractors-shadow-economy
    McAuliffe has 6 months left , we can’t have 4 years of a Republican Governor laying complicit to illegal employment as Ken Cuccinelli and Bob McDonnell did.

    • This doesn’t have anything to do with what McAuliffe just did.

      • ameri…canwork

        Oh it does .
        This sort is about our Governor.
        It shows he is compassionate
        to people’s well being.
        My comments she’d light on his on knowledge of labor exploitatation , tax fraud insurance fraud and payroll fraud.
        Now the comments along with the story show just how disconnected The previous Republican Administration was.
        How many Virginians were place on unemployment or medicaid because of job loss due to the ineptitude of Republicans to enforce existing Va. Laws?
        One Republicans does nothing to protect legal employment causing wage suppression and a need for goverment assistance.
        The Democrat appears just wanting to help. I call that leadership.

        • Causing a Constitutional crisis by pretending that you vetoed something you can’t veto is showing he’s “compassionate to people’s well being”?

          I don’t think so.

          Your comments have nothing to do with the article. Enough.

          • ameri…canwork

            The Constitution was
            pissed on when Elected Republicans allowed VEC Commissioner Broadways
            Auditors to classify unlicensed contractors/illegal aliens
            as “bona-fide independent contractors.
            Brian,
            DPOR Regulates Contractors NOT The VEC.
            That is a big Constitutional Crisis , a bona fide one!

          • Jim Portugul

            Do you believe that middle-class Virginians have a right to know how much federal money this state has lost due to not expanding Medicaid? And now, apparently under the just passed in the US House Trumpcare disaster bill, Virginia would now be penalized forever for saying “no” to $5-10 BILLION so far in Federal federal funding.

            The same low intelligence lugheads who put Trump in office are turning the lights out on billions and billions of dollars because they are both ignorant, stupid, and have fallen under the spell of the lies of Limbaughism. Our money went to other states that are far better managed than Virgina.

            Are you that stupid Mr. Schoeneman? Why suppress the truth, and lipwhip me for bringing it out????

          • I have no idea what you’re talking about in terms of “suppressing the truth.”

            As for Medicaid expansion, we haven’t lost anything. And given that the states who expanded Medicaid are likely going to be on the hook for that extra money when Obamacare gets repealed, it’s going to look like a pretty good decision that we didn’t expand Medicaid.

            We don’t get penalized forever – we dodged a bullet.

            But hey – this isn’t about Medicaid expansion. It’s about McAullife’s bad behavior.

          • Jim Portugul

            How can you say Virginia has not lost Billions in Federal funds by not expanding Medicaid? How did you ever come up with that one?

            Whatever people call McAuliffe, having a Democrat as governor stops Republicans like Bob McDonnell from taxing us until our noses bleed. I will never forget my delegate bragging about stopping Kaine from raising taxes during his administration. Republicans love to brag about stopping Democrats from raising taxes. However, if the Republicans get control of all three branches, they’ll tax us until our noses bleed. (HB2313)

            To see a perfect example of what happens if Republicans control all three branches of government, just look at the current state of affairs in Washington DC, A total and absolute disaster.

            Even the once reliable Congressman Rob Wittman has thrown the middle-class to the rabid dogs with his “aye” vote on both HR 1180, and the far worse than Obamacare, Trumpcare disaster.

            Neither bill was scored by the CBO before Ryan/Trump did exactly what they accused Obama of doing. Congressman Wittman has always talked about a balanced budget amendment, and more defense spending. And yet, he is still running and hiding from his “aye” vote on sequestration. How can you ever control spending when you support bills without knowing what they will cost? And, how can we increase defense spending when he voted to cut military spending with sequestration?

            Shame on Congressman Wittman. And, great job by Congresswoman Comstock on voting “nay” to the Trump healthcare disaster.

          • Because we haven’t lost anything – no one has taken anything from us. We simply didn’t accept the funding, and that didn’t cost us anything.

            The expansion was only covered by the Feds until 2016 and then it drops down to 90% down the road. We’re on the hook for more money.

            You guys don’t like getting taxed, why do you want us to take on a huge obligation that we will be forced to raise taxes to fund down the road?

            The AHCA is not going to be enacted in the present form, so the score and the rest doesn’t matter. It’s going to be rewritten by the Senate. They needed to get a bill done to keep the reconciliation process going.

            But again, that’s not the point of this article.

          • Jim Portugul

            Well, regarding McAuliffe. Plain and simple, having an “official” Democrat as governor motives Republicans to not “behave badly” and raise taxes. Basically, from a fiscal standpoint Republicans act like Democrats without a Democrat as governor.

            When it comes right down to it, neither party is addressing the real issues that have been around for years. This state, and the entire country, has fallen far behind on the world stage due self-centered corrupt politics focused of the greed based accumulation of wealth.

            The candidates for governor and Lt. governor for both parties would possibly be better suited for a role on Sesame St. rather than any management position at any level.

          • The transportation bill was necessary. This wasn’t increasing taxes to cover more transfer payments and social welfare programs. It was direct investment into infrastructure. The GOP isn’t knee-jerk anti-tax. We’re for keeping taxes low and fiscal responsibility. The tax increases for transportation still kept our sales taxes, even in NOVA and VB, lower than our surrounding states, and it put money into infrastructure, which was needed, and that’s fiscally responsible – more responsible than running up debt on a credit card, which is what we do at the federal level, even if we can’t do it at the state level.

            Greed is why we’ve fallen behind? Okay. You’re complaining about tax increases and then blaming greed in the same paragraph.

          • Jim Portugul

            Brian, can we agree on this, raising taxes for transportation is something Bob McDonnell, a Republican, said he would not do during his campaign?

            This lying by Republicans such as McDonnell, Trump, Ryan, just has got to stop. Trump said Mexico would pay for his wall, and now, he wants to send me the bill. I am not paying for any wall.

            When you say that the tax increase for transportation was not necessary, then why is it that your now Congressional Rep., (Comstock) who was a member of the Virginia General assembly in 2013, voted “nay” to HB 2313?

            Seems occasionally Congresswoman Comstock lands on the right side of an issue. I would also suggest that Comstock be considered to lead the FBI. Unless, Trump decides to nominate a career agency person. But, we all know Trump will nominate an ass kissing yes person (I bet it a woman) that he can control.

          • cargosquid

            For once, you and I agree completely.

    • Downstater

      “When will Va.Republicans grow a spine and end Santurary Employment in Va?” – When Corey Stewart becomes governor. Vote for COREY – June 13.

      • ameri…canwork

        I eagerly await primary day.
        I will cast vote for only Stewart.
        Wagner knows of this major loophole, he has not exhibited the will to defend Va. from illegal Commerce.
        I don’t expect Republicans to produce Va.Republicans to produce Employee Misclassification legislation to end this.
        The MS-13 gang members that fled the killing in Montgomery County, MD. knew to come to the Lynchburg area for safety and work.
        This was not our first encounter. About 4 years ago
        a VOSHA/DOLI compliance officer stopped on a job site off Hooper Rd. ( same area as Raymond killers ) to issue up safety violations for noncompliance. This crew was being subcontracted to frame a home by the original licensed subcontractor (pimping illegal labor).
        Va. Senator Steve Newman knew of this case firsthand. He has done nothing. McAuliffe knew of this illegal employment 5 months prior to him winning, but he did not take ANY action until Kenrick Ward ran the story I post. It took this story to have McAuliffe impose a policy change having VOSHA/DOLI notify DPOR of the use of unlicensed contracting. This action then caused Va
        R. Senator Bill DeSteph to write SB483. This bill would have made it illegal for VOSHA/DOLI to notify any other State Agency or Court of the use of unlicensed contracting. Senator DeSteph
        was the Tidewater Builders Association Director.
        I guess they do have a spine , just not an American one.
        If Newman didn’t act when MS-13 Was first detected , then when the illegal aliens were found laying block at Brookville High School , they will do nothing.
        It does shoot holes in their claim of broadening the base.
        It is not that Republicans like illegal aliens it is that they like cheap labor and the only way to beat legitimate wages is to have illegal wages.
        You will not hear of any Republican including this sites writers and editors speak if EO24. I guess they don’t understand the law , no just when to exploit it.

  • Paddycakes

    Bearing Drift’s attempt to defend the indefensible. People need healthcare. Seems to me that it should be a basic right. Why are Republicans who have healthcare afraid of others having it? Only to prove to their narrow constituencies that they have the power to stop anything that has the whiff of being progressive. Try doing what is right for all Virginians, just this once.

    • Everybody has health insurance now – that’s the point of Obamacare, wasn’t it?

      The issue isn’t whether people have care – they have it. The question is how they pay for it. But the point of this article isn’t to defend or oppose Medicaid expansion. It’s to point out the bad behavior of the Governor in trying to circumvent the law because he lost the argument.

      • Paddycakes

        “24 million to be left out of insurance under Trumpcare”,but I’m sure that’s fake news.

        • Isn’t law.

          • Paddycakes

            Exactly.You are suggesting that you have to be dying to get care, otherwise hastalavistababy. Can you afford paying $2000 a month for a family of four on the private market when you lose your job?

          • I’m not suggesting anything. I’m saying that the complaints about the House Republican health care plan are pointless because it’s not law and it will never be law.

        • Wild West

          What the left is ignoring is that 100% of those persons estimated to drop their insurance are doing it of their own volition.

          No person has ever been denied life saving medical care due to an inability to pay for it.

  • DJRippert

    I like Terry McAuliffe. He seems like a fun kind of guy. He didn’t get much done during his tenure as governor but that’s fine by me. Virginia’s state constitution is so hopelessly flawed that the less our state government does the better. Let them spend a couple of months a year in Richmond playing Delegates vs Senators basketball games and passing laws commending the lives of recently deceased Virginians.

    Now, no matter what you think about Terry … he’s not stupid. And no matter how much you like Terry you have to know that he’s asking “What’s in it for Terry?”

    I imagine Terry thought he’d be filling the rest of Tim Kaine’s US Senate term by now. Or, at least, be on his way to be the Ambassador to Ireland. But Hillary and Little Timmy Kaine ran a catastrophic campaign that resulted in Donald Trump being elected.

    Now what for Terry? He knows this veto maneuver will fail. So, why do it? It burnishes his progressive credentials (although in an awkward and half-assed way). But it also establishes him as a Don Quixote like figure with either little understanding of the state Constitution or little regard for it.

    In eight months he won’t be governor anymore. He can’t run for reelection. The two US Senate seats seem to be firmly in Democratic hands. Trump will be president for at least 3 years after he leaves the governor’s mansion. What’s his play? And please … don’t talk about altruism. Terry could neither spell nor correctly pronounce that word. It’s not in his vocabulary.

    So why go through the futility of trying something that everybody knows will fail?

    Any chance Terry has eyes for Barbara Comstock’s House seat? A former Governor with two years in Congress by the time of the next presidential election? VP for the Democratic nominee? Secretary of Commerce if the Democrats unseat Trump? Worst case … Ambassador to Ireland?

    You know he has a plan but what is it?

    • AnninVA26

      Whatever the Soros/Clinton/Kaine block needs him to do. He was our governor to ensure it went blue for Hillary, which it did. However, that wasn’t too tough. People in the legislature who know Terry say he isn’t interested much in the issues and doesn’t know much about much – often refers people to his staff for answers to questions. He was put there to push the progressive agenda, however it happens, and that’s what medicaid expansion is about. He picks the fights that do the most good. He’s from NY…hardly a loyal Virginian.

  • You overstate when you use the word “crisis”. “Brouhaha” would be a better choice, with “Meh” being the best.

  • DWRVA

    Serious question:

    Do you have any concern whatsoever about a single, unelected state official making the determination as to whether a Governor’s veto is sound?

    BTW, this post is incredibly misleading. Governor McAuliffe didn’t take action against Paul Nardo’s decision w/r/t previous Medicaid vetoes. It’s safe to assume that the Governor’s Office had much greater concerns about the Item 436 veto (Transportation) than it did the Item 306 veto (Medicaid). Even though Paul Nardo used the same case law and similar arguments, the case that he made for Item 436 is much weaker.

  • SJane

    Terry McAuliffe is Gov of VA in name only. He has NO ancestry connections to Virginia.
    If Medicaid expansion was allowed in VA, we may well have the same problems as Iowa. ONE patient in Iowa is using $1 Million a day in health care insurance under Medicaid. Patient has genetic condition, this will not improve, but required under ACA, Ins. companies pulling out of Iowa 2018…the burdens for this will fall to taxpayers, if Medicaid expansions were to be allowed in Virginia, look at the potential for greedy politicians to have their way…IMO

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