Va. attorney general says Medicaid expansion unconstitutional

Legislation authorizing Medicaid expansion and imposing regional tax increases for transportation is unconstitutional, Virginia Attorney General Ken Cuccinelli said Friday.

In an advisory opinion, the Republican Cuccinelli wrote that lawmakers improperly delegated authority to a panel on the Medicaid issue. And in an advisory opinion on another issue, he wrote that they violated a constitutional prohibition against state passage of local laws in the regional component of a sweeping transportation funding bill.

The nonbinding opinions were requested by Del. Bob Marshall, R-Prince William, who opposed both measures. Gov. Bob McDonnell has until the end of the day Monday to sign, amend or veto the bills.

"We appreciate the attorney general's ongoing constructive legal and constitutional advice to this office relating to these bills recently passed by the General Assembly," said McDonnell spokesman Paul Shanks. He said the governor's office "will consider that advice as we make a final determination on necessary amendments to the legislation."

Friday's opinion on Medicaid expansion is the second issued by Cuccinelli. The first one, issued in the waning hours of the 2013 General Assembly, also concluded that the legislature violated the state constitution by establishing a 10-member commission to oversee reforms required to expand Medicaid to 400,000 uninsured, low-income Virginians under the federal health care reform law. Cuccinelli said the General Assembly cannot delegate decisions on Medicaid expansion to another body.

Lawmakers sought to address the concern by amending Medicaid provision, which is part of the revised state budget, to remove the commission's discretion and make its actions mandatory. But the attorney general said expansion still would hinge on certain judgments made by the commission, so the constitutional infirmity remains.

Cuccinelli, who filed a lawsuit unsuccessfully challenging the federal health care reform law, said he was offering no opinion on the wisdom of Medicaid expansion.

"The legal opinion I offer here is limited solely to the method the General Assembly has chosen regarding Virginia's ultimate decision on the issue," he wrote.

In the other opinion issued Friday, Cuccinelli said provisions in the transportation bill imposing a 0.7% sales tax in northern Virginia and Hampton Roads, as well as real estate recordation tax and hotel tax increases in northern Virginia, are unconstitutional.

"The prohibition on special or local laws and the directive that the General Assembly enact general laws has been part of the Virginia Constitution since 1902," Cuccinelli wrote. He said the constitutional provision is intended to prevent favoritism, discrimination and inequalities in the application of laws.

He said the local taxes "discriminate against certain localities," and therefore violate the constitution.

The Medicaid expansion and transportation issues became linked late in the legislative session that ended last month. The Republican governor pressed for the legacy-making transportation bill in the last year of his term, and Senate Democrats demanded Medicaid expansion in exchange for their support of the highway funding measure. Both proposals passed on the final day of the session.



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