Bob McDonnell says Supreme Court ruling on health care left Medicaid mandate intact

Gov. Bob McDonnell joined the list of disappointed Republican leaders who took to airwaves in the hours after the U.S. Supreme Court upheld most of President Obama’s health care law.

McDonnell, the chairman of the Republican Governors Association, said the court’s ruling does not mean the law is good policy.  Then he ripped at a provision that will greatly widen the Medicaid program for low-income and disabled people. McDonnell said the expansion will strain state budgets.

"I tell you what it means for Virginia -- $2.2 billion of an unfunded mandate in Medicaid expansion over the next decade," McDonnell said in an interview on MSNBC on June 28, the day the Supreme Court issued its ruling.

McDonnell repeated his statement on June 29 -- the day after the court decision -- during a CNN interview with Soledad O’Brien. He said as a result of the ruling, a "$2.2 billion unfunded mandate falls on Virginia."

"Medicaid is growing incredibly fast as a part of the budget. Now this is $2.2 billion on Virginia," the governor said.

Late in the afternoon of June 29, McDonnell appeared on Fox News and referred to the health care law as "a cumbersome, unfunded mandate that will cost my state $2.2 billion in the next 10 years by this incredible expansion of Medicaid that has already busted the budget."

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McDonnell’s mandate claims are striking because, even at the time of his first utterance, it was being widely reported that the court ruling overturned a provision in the law that required states to expand Medicaid. We initially thought the governor misspoke. But when McDonnell twice repeated his statement on national television the next day, we decided to examine his claim that the health care law still subjects states to a Medicaid mandate.

The Supreme Court, in a 5-4 ruling, upheld the major provision of the health care law that will require most people to buy medical insurance or pay a tax penalty.

The law also calls for expanding Medicaid by covering adults and families with incomes up to 133 percent of the federal poverty level, starting in 2014. The court struck down a provision that allowed the federal government to revoke its matching Medicaid funds to a state that refused to take part in the expansion.

Chief Justice John Roberts wrote on page 58 of the ruling: "As for the Medicaid expansion, that portion of the Affordable Care Act violates the Constitution by threatening existing Medicaid funding. Congress has no authority to order the states to regulate according to its instructions. Congress may offer the states grants and require the states to comply with accompanying conditions, but the states must have a genuine choice whether to accept the offer."

Attorney General Ken Cuccinelli, in a written statement released several hours after the Supreme Court decision, concluded that the Medicaid mandate had been voided. He called it a "silver lining" in a disappointing ruling.  

"The court blocked the federal government from withholding Medicaid dollars that states receive under the current Medicaid program if those states do not want to participate in the new and costly program expansions mandated under the health care law," Cuccinelli wrote. "This alone could save the commonwealth about $200 million a year..."

Timothy S. Jost, a law professor at Washington & Lee University, had a similar take during an interview the day after the high court ruling.

"The Supreme Court expressly said if Virginia doesn’t want to participate in the Medicaid expansion, it does not have to," Jost told us.

We asked the governor’s office how McDonnell justified his claim that the ruling means a $2.2 billion mandate for Virginia.

Jeff Caldwell, a McDonnell spokesman, cited a 2010 report by the Virginia House Appropriations Committee staff estimating it would cost the state between $1.5 billion and $2.2 billion to cover Medicaid expansion through fiscal 2022.  

"As you know, the Supreme Court’s ruling places some uncertainty in this issue by removing the mandate" for Medicaid, Caldwell said in an email.

In other words, the administration is acknowledging that -- contrary to McDonnell’s statements -- the Medicaid mandate is void.

One final note: The federal government will pay for the vast bulk of the expansion costs for states, covering 100 percent of the tab from the 2014 through 2016 fiscal years. Starting in 2017, the federal share gradually goes down to 90 percent by the 2021 fiscal year. That’s still a better deal than the 50 percent federal Medicaid match now offered to Virginia.

Our ruling

After the Supreme Court’s ruling on the health care act, McDonnell repeatedly said states still face a "mandate" to take part in Medicaid expansion provisions in the law.

Actually, the court’s ruling had the opposite effect. It took away Washington’s ability to punish states that don’t take part in the expansion by eliminating their federal Medicaid subsidies. The court ruled states must have "a genuine choice" whether to take part in the expansion.

It is perplexing that McDonnell --  a lawyer for 23 years who served as Virginia’s attorney general and now commands a knowledgeable gubernatorial staff -- would repeatedly misrepresent a major part of a landmark decision by the U.S. Supreme Court. Thirty hours after the ruling, McDonnell maintained on national TV that the Medicaid mandate was intact.

We rate McDonnell’s statements Pants on Fire.