Friday, March 22, 2013

Attorney General's Medicaid Two-Step

In his opinion issued today finding that the commission created by the General Assembly to bless the Medicaid expansion, the Attorney General wrote the following:
"Furthermore, the General Assembly is prohibiting from doing indirectly that which the Virginia Constitution prohibits it from doing directly" 
He cited  Marshall v. N. Va. Transp. Auth., 275 Va. 41 9, 435, 657 S.E.2d 71, 78 (2008) for this proposition.  I about fell out of my chair when I read that he wrote that. 

Back in early 2012, I asked the Attorney General for an opinion about pending legislation to allow individuals and corporations to claim tax credits for contributions to foundations that would spend that money on private secondary education.  The Commonwealth is specifically prohibited from supporting religious education by both the First Amendment and the Constitution of Virginia in two different places.  The Attorney General also previously opined that the General Assembly was specifically prohibited from appropriating money to charities back in 2010. 

I argued while a tax credit was not the state writing a check, the effect on the state treasury was the same - a dollar for dollar reduction of tax revenue by an amount ultimately going to private education.  I also suggested that the state can't go through the back door to do something not allowed through the front.

In an opinion dated May 25, 2012, the Attorney General said I was wrong and that the Constitution only prohibited appropriations, but not tax credits basically ducking the thrust of my argument which was that the Constitution prohibits taxpayer money going to non-public education, religious education or charities. 

I guess his view of the Constitution depends on which policy he's evaluating.

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