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Medicaid: Will McAuliffe play the Cuccinelli card?

As Bill Clinton once famously said: “It depends upon what the meaning of the word is is.” Ain’t that the truth. Last year, GOP gubernatorial candidate Ken Cuccinelli strongly opposed Democratic rival Terry McAuliffe’s promise to expand Medicaid.

That was a partisan difference. But earlier in 2013, Mr. Cuccinelli had occasion to address a question sitting at the heart of the Medicaid expansion debate in a nonpartisan way: Who has the legal right to expand the program?

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.”

This all bring us to the second most famous observation related to what is is: “What is there about “no” that you don’t understand?”  Mr. Cuccinelli said no to MIRC not once, but twice. He isn’t right about everything, but he has not had a formal legal opinion reversed in court.

Thus lay the legal landscape when McAuliffe moved to Richmond. It’s likely that Mr. Cuccinelli has not changed his constitutional view, and our bet is that his successor, Democratic Attorney General Mark Herring, agrees with him.

Why, then, hasn’t McAuliffe tried to get MIRC declared unconstitutional? Our guess: Besides technical law-suit requirements, knocking out MIRC doesn’t give him unilateral authority to expand Medicaid.

Yet eliminating MIRC would give McAuliffe useful political leverage on his signature issue.

Right now, Republican legislators can hide behind MIRC, saying it alone has authority to make the policy decision. Thus, eliminating MIRC forces House Republicans to develop a Medicaid strategy beyond “it’s up to MIRC.” Those 400,000 uninsured Virginians are still legally entitled to care at mushrooming costs to taxpayers. Take away MIRC, and Republican lawmakers either develop a plan to address this growing problem or seem woefully out of touch.

But you say: Polls suggest Medicaid expansion is a political loser. Why then should Republicans care? By creating MIRC, the General Assembly accepted the responsibility to resolve the expansion issue. This doesn’t change even if MIRC is declared unconstitutional.

Post-MIRC, the Democratic Senate would press for the Republican House to either fulfill its obligation or delegate the authority to the executive branch within defined criteria, as is customary.

Governing is about choosing. Removing the MIRC fig leaf gives the governor more political muscle. McAuliffe should have played the Cuccinelli card months ago. It may not be too late.

Norman Leahy is an editor of the conservative Web site and producer of the political radio show “The Score.” Paul Goldman is a former chairman of the Democratic Party of Virginia. They are blogging together on All Opinions Are Local during Virginia’s 2014 General Assembly session.