The Kaiser Family Foundation this year has estimated in swing states Ohio and Virginia, there would be anywhere from 1 million to 1.4 million new Medicaid enrollees under Obamacare.
That is, if the states actually expand Medicaid. But no such expansion has been approved by either Ohio or Virginia’s respective legislatures.
In Ohio, the legislature overwhelmingly rejected it, prompting Republican Gov. John Kasich to turn to the state’s controlling board for authority to approve expanding the program. The only problem is state law explicitly prohibits such a move: “The controlling board shall take no action which does not carry out the legislative intent of the general assembly regarding program goals and levels of support of state agencies as expressed in the prevailing appropriation acts of the general assembly.”
But even if the controlling board’s actions had been legal under the code — they weren’t — the move by the controlling board clearly commandeered the constitutional legislative powers of the Assembly delegated in Article II of the state’s constitution: “The legislative power of the state shall be vested in a General Assembly…”
This has prompted a lawsuit by state lawmakers who are contesting the controlling board’s authority to change state law and change appropriations levels.
Similarly, in Virginia, outgoing Republican Governor Bob McDonnell signed law that created the Medicaid Innovation and Reform Commission, which is tasked to “review, recommend and approve innovation and reform proposals affecting the implementation of Title XIX and Title XXI of the Social Security Act, including eligibility and financing for proposals set out in Item 307 of this act,” meaning Medicaid.
The process calls for the Department of Medical Services to seek the approval of the committee to amend the State Plan for Medicaid Assistance. After that, “the department shall implement the provisions” called for under the expansion.
This has the effect of amending Commonwealth law affecting appropriations levels and eligibility for Medicaid without any vote in legislature. No further legislative approval is provided for.
But like Ohio, in Virginia’s constitution the legislative power is vested in the legislative body. Further it requires that any appropriation in excess of $500 “shall be passed except by a recorded affirmative vote of a majority of all members elected to the governing body.”
A department request approved by a supercommittee does not fall into that category. Constitutionally, it still requires legislative approval to become law.
So, even if Democrat Virginia Governor-elect Terry McAuliffe manages to convince the Medicaid commission to expand the program, the move will likely wind up in court too on account of its extraconstitutional nature.
At a speech on Nov. 20, McAuliffe warned business leaders that without pressure on state lawmakers, Medicaid expansion would not succeed.
The current elected officials on the commission on the Senate side are Walter A. Stosch, Janet D. Howell, Emmett W. Hanger, Jr., John C. Watkins, and L. Louise Lucas. On the House side, they are R. Steven Landes, Beverly J. Sherwood, John M. O’Bannon, III, James P. Massie, III, and Johnny S. Joannou.
It takes 3 out of the 5 House members and 3 out of 5 Senate members of the commission in order to approve the expansion.
Robert Romano is the senior editor of Americans for Limited Government.
