The Washington Post

Can Virginia Gov. McAuliffe expand Medicaid on his own?: FAQ

Virginia Gov. Terry McAuliffe receives a standing ovation before delivering remarks regarding his first 100 days as governor to an audience of cabinet secretaries, staff, lobbyists and media at the Library of Virginia in Richmond on April 21. (Bob Brown/AP)

Virginia Gov. Terry McAuliffe is consulting with a number of lawyers, health-care experts and legislators about expanding Medicaid coverage for the poor without the approval of the state legislature. The move would allow Virginia to take advantage of a key state option under the Affordable Care Act, but it carries potential political and legal risks.

Is Gov. Terry McAuliffe going to go it alone on Medicaid?

We know that the Democratic governor is exploring a ways work around the General Assembly if he cannot get the GOP-dominated House of Delegates to go along to expand the health-care program for the poor under what’s commonly known as Obamacare. McAuliffe himself hasn’t said as much, but four people familiar with discussions in the governor’s and attorney general’s offices confirm they’ve been looking at that possibility. It is not clear that they have found a way, or if the governor is willing to pull the trigger.

Has any other governor gone that route?

Only two governors, Ohio’s John Kasich (R) and Kentucky’s Steve Beshear (D), have found ways to plow past legislatures to expand the program. They were able to rely on quirks in their own state laws that do not appear to be available to McAuliffe.

Can McAuliffe really expand the program on his own?

It’s not clear that he can. Republicans say the move would be an unprecedented and unconstitutional power grab. A.E. Dick Howard, a University of Virginia legal scholar and chief draftsman of the current state constitution, says he can’t think of a way — although he doesn’t completely rule out the possibility.

What are some possible ways he could do it?

Among the theories: insurance companies and hospitals set up a consortium, similar to a public utility, that would channel the federal money to them. Another possibility is that the governor could claim power under the premise of some sort of state of emergency, such as the imminent closure of a hospital or even the shutdown of state government. The latter could happen if the General Assembly, whose deadlock on Medicaid has prevented passage of a state budget, does not pass a spending plan before the start of the new fiscal year July 1.

Is Virginia headed for a government shutdown?

McAuliffe has said over and over that he will not allow the government to shut down, but that does not mean he’s guaranteeing that there will be a budget deal by June 30. He’s saying that he will use his power as governor to keep the lights on, at least for essential government services.

Can he do that?

Again, we would be in uncharted legal territory. Virginia has never busted a budget deadline, though it has come very close before. No one wants him to pull the state troopers off the road or open the prison doors, but they don’t want Virginia to start operating like Washington, failing to pass budgets as a matter of course.

Laura Vozzella covers Virginia politics for The Washington Post.

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