Virginia Gov. Terry McAuliffe shouldn’t try to impose Medicaid expansion unilaterally

Columnist June 4, 2014

Having failed to schmooze Republicans into broadening Medicaid coverage as he promised, Virginia Gov. Terry McAuliffe (D) is studying whether he might unilaterally expand the program without legislative approval.

Don’t do it, Terry.

Robert McCartney is The Post’s senior regional correspondent, covering politics and policy in the greater Washington, D.C area. View Archive

It’s awfully tempting. But the price is too high.

First, it’s probably illegal. The reigning expert on the state constitution, University of Virginia law professor A.E. Dick Howard, told me in April he “would be puzzled to be told [the governor] had that power.”

Former state solicitor general William Hurd said flatly, “I know of no authority allowing the governor to expand Medicaid eligibility in Virginia by executive order.”

Okay, so Hurd is a Republican. But even Democratic legal experts are skeptical.

Second, unilateral action would grossly betray McAuliffe’s vows in last year’s campaign to govern as a seeker of bipartisan deals and compromise. Recall he made that a central theme of his speeches, to draw a contrast with his hard-line conservative opponent, Ken Cuccinelli II.

Bypassing the GOP-dominated House of Delegates, which remains steadfast in rejecting Medicaid expansion, would trigger an explosively partisan constitutional crisis.

The fallout would include making it harder to address the recent, unexpected emergence of a large shortfall in the state budget. The deadlock over Medicaid expansion has prevented adoption of a budget, due in less than a month.

McAuliffe, who prides himself on being a pro-business Democrat, hardly wants to preside over financial turmoil that would threaten the state’s prized triple-A bond rating.

Finally, imposing Medicaid expansion on questionable legal grounds would set a terrible precedent that could haunt Democrats in the future.

Envision the possibility that Cuccinelli staged a political revival and won the governorship. Think of what he might do if he felt unconstrained by the legislature.

Find an excuse to shut down all of the state’s abortion clinics? Block salaries of professors at state universities who believe in climate change? Require the teaching of “intelligent design” in public schools?

“One can just imagine how this strategy can be utilized by future governors when they can’t get their way in the legislature,” Richmond political commentator Bob Holsworth said. “I’m not sure that can be heartening to either conservatives or progressives.”

As I’ve written in two previous columns, I think the Republicans’ obstructionism on Medicaid is mostly ideological and utterly self-defeating for Virginia.

It’s a shame the state might have to turn away $2 billion a year in federal Medicaid funds, principally because the GOP can’t stomach anything associated with President Obama’s health-care reforms.

But the facts remain: The GOP has the votes, now and for the foreseeable future. Those votes count for something. Thanks to Thomas Jefferson, James Madison and a few others, the governor isn’t a king.

“If it’s perceived as saying, ‘We lost in the legislature, but we’re going to do it anyway,’ that wouldn’t play too well,” Howard said in the April interview.

Howard’s views are particularly relevant today because Attorney General Mark R. Herring (D) hired him last week at $500 an hour to advise him on constitutional issues regarding the budget and Medicaid expansion.

In his public statements, McAuliffe remains “optimistic” about getting a deal to add up to 400,000 low-income Virginians to the Medicaid rolls.

That presumes that the House GOP will undergo a miracle, last-minute conversion prior to the July 1 budget deadline.

There is no evidence, however, that House Speaker Bill Howell (R-Stafford) and his allies are ready to do anything of the sort.

McAuliffe was supposed to be able to win a deal through a combination of personal charm, persuasive powers and savvy bargaining. To his credit, he offered numerous compromises to try to win over the Republicans, especially by structuring the plan with plenty of private sector involvement.

It hasn’t worked, even after he made a splash in Richmond by throwing open the governor’s mansion to legislators for drinks.

“On issues where there is really serious ideological division, even the best Scotch won’t make a difference,” Holsworth said.

Now, it’s time to fight another day. McAuliffe should squeeze whatever face-saving concessions he can from Howell and company on Medicaid, pass a budget without it, and look to the future.

The governor still has three years left to win the battle on Medicaid. He should do so as he promised, by public persuasion rather than iffy gimmicks.

I discuss local issues Friday at 8:50 a.m. on WAMU (88.5 FM). For previous columns, go to washingtonpost.com/mccartney.

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