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.