McAuliffe and his top advisers have consulted lawyers, health-care experts and legislators on how to bypass the GOP-dominated House of Delegates, according to three people familiar with the discussions. A fourth, who like the others spoke on the condition of anonymity because they were not authorized to reveal private strategy, said the office of Attorney General Mark R. Herring (D) has been researching the matter.Those two governors are Kentucky Democrat Steve Beshear, and Ohio Republican John Kasich, both of which had legal leeway to unilaterally act that McAuliffe might lack. In Kentucky, Medicaid eligibility levels are set by regulation and can be changed by executive rather than legislation action. In Ohio, Kasich had the power to direct an administrative board that oversees state contracting to approve the Medicaid expansion. McAuliffe is going to need a similar executive power loophole in state law to pull it off.
The move would allow Virginia to take advantage of a key state option under the Affordable Care Act, and it could help break a budget stalemate and avert a looming government shutdown. But it would be a daring action; only two other governors have done anything similar to bulldoze Medicaid expansion past opponents.
Politically, actually expanding Medicaid by executive action would set off a firestorm within the state. But exploring that option, and doing it if a legal way is available to do so, is something that a purple state governor shouldn't be afraid of. For one thing, reliable polling in the state shows solid bipartisan support among voters for the expansion.
At this point neither McAuliffe nor Herring is confirming that they're exploring this option, but when asked directly, neither has denied it. It would be dereliction of duty for McAuliffe to not explore acting on his own, given how many Virginians have fallen into the Medicaid gap.