RICHMOND — The General Assembly’s landmark transportation-funding overhaul and a Medicaid deal that Democrats linked to it are unconstitutional, according to two legal opinions Virginia Attorney General Ken Cuccinelli II issued Friday.
Cuccinelli’s opinions, requested by a state delegate who derailed the last ambitious road-funding plan, do not necessarily doom either bill, because they are only advisory. But they could give Gov. Robert F. McDonnell (R) pause ahead of Monday’s deadline to veto or propose amendments to the legislation.
McDonnell, who is term-limited, has pushed hard for a transportation deal to cap his legacy in his final year in office. His predecessor, Timothy M. Kaine (D), saw his attempt at a funding fix crumble under a court challenge from Del. Robert G. Marshall (R-Prince William). Marshall, who requested both opinions from Cuccinelli, has already promised to sue.
McDonnell grudgingly went along with the Medicaid deal, which amounted to budget language that provides a path to expand the health-care program. He did so after Democrats said they would not support the transportation bill without it.
McDonnell’s office seemed to react coolly to Cuccinelli’s opinions.
“Every bill passed by the General Assembly is reviewed by the attorney general, and we will consider that advice as we make a final determination on necessary amendments to the legislation,” McDonnell spokesman Jeff Caldwell said in a statement.
Cuccinelli, a Republican running for governor, has objected to the $1.4 billion-a-year transportation bill as being too heavy on taxes. It raises $1.2 million in new revenue. Cuccinelli also has been a prominent critic of the new federal health-care law, which creates the groundwork for the potential Medicaid expansion.
But in his opinions, Cuccinelli said he is not passing judgment on the wisdom of either bill, only on their constitutionality.
“I do not conclude that the General Assembly cannot address the problem, but rather, only that constitutional means be employed,” he wrote.
Cuccinelli took issue with a portion of the transportation bill that imposes special taxes on the state’s two most congested regions — Northern Virginia and Hampton Roads. The taxes would raise a total of about $500 million a year, to be used for transportation projects in those regions.
He said the state constitution, with very few exceptions, does not allow the General Assembly to impose special taxes on geographic areas. But it can set them based on non-geographic criteria, like population density or level of traffic.
Cuccinelli had raised constitutional questions about the Medicaid deal in a legal opinion that came to light Feb. 23, the last day of session. It threatened to torpedo not only the Medicaid plan but also the transportation plan, since Democrats had made their support for one contingent on the other. The Medicaid language called for a commission to expand the health-care program for the poor once Washington agreed to certain reforms.
He had said the legislature illegally delegated its spending authority to a subset of itself. So legislators came up with language that preemptively directed the commission to expand Medicaid if certain reforms are implemented.
In writing his opinion, Cuccinelli said it was still unconstitutional because determining when reforms have been met is highly subjective.