Can the Virginia General Assembly delegate final say over a budget item, like Medicaid expansion, to a small subset of legislators?

Plain-English summary

Delegate Cline asked a hypothetical version of the question that Delegate Marshall asked in 13-013 about the actual 2013 budget. The proposal: enact a Medicaid expansion provision now, but say it only takes effect later if a smaller committee of legislators (some six to twelve members from the two houses) votes that certain conditions have been met.

The AG said no.

The constitutional framework. Article IV, § 11 prescribes exactly how a bill becomes law: committee referral, printing, three readings, and a final vote in which a majority of those voting in each house, including at least two-fifths of the members elected to that house, vote in favor. For budget bills, the bar is higher: a majority of all members elected to each house must vote in the affirmative (51 House members, 21 senators), regardless of how many vote at all.

These rules limit the General Assembly. They cannot be avoided by structurally similar but different mechanisms. Specifically, the General Assembly cannot pass a statute that says "this becomes effective only if a subset of our members later determines that X." That mechanism, the AG concluded, was an unconstitutional delegation of the General Assembly's legislative power.

Why this matters: the constitutional requirements protect transparency and accountability. Each member's vote on a budget item is on the record. Citizens see how the people they elected voted. Delegating the effective-or-not decision to a small committee removes that accountability for the second-stage decision, even if the first-stage statute itself was passed by the whole body.

The AG drew on Marshall v. Northern Virginia Transportation Authority (2008), where the Virginia Supreme Court struck down a regional transportation funding scheme partly on the ground that the General Assembly cannot indirectly do what the Constitution forbids it from doing directly.

The AG flagged some open questions in a footnote. If executive or judicial branch members participate in the delegated body, separation-of-powers problems multiply. The hypothetical Cline asked did not provide enough detail to address those.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What does Article IV, § 11 require for a bill to pass?
Referred to a committee in each house, reported back, printed in the house of origin, read by title (or title printed in a daily calendar) on three different calendar days in each house, and a final vote with named, recorded, roll-call majorities including at least two-fifths of the members elected to that house.

What's different about budget bills?
The threshold goes up. Bills that create or revive a debt or appropriation, release a Commonwealth claim, or impose or revive a tax must pass by an affirmative vote of a majority of all members elected to each house. That means 51 yes votes in the 100-member House, 21 in the 40-member Senate. Failure to reach that count means the bill fails, even if no one voted no.

Why can't the General Assembly delegate to a smaller group?
Because doing so would let the body sidestep the supermajority threshold and the recorded-vote transparency rules that Article IV, § 11 imposes specifically for budget items.

What is "doing indirectly what cannot be done directly"?
A constitutional-law shortcut for: if a state actor cannot achieve outcome X by method A (because the Constitution forbids it), the actor also cannot achieve outcome X by method B if B's only function is to circumvent A's prohibition. The Virginia Supreme Court applied this principle in Marshall to strike down a delegation of the General Assembly's taxing power to a regional transportation body.

Could the General Assembly condition a budget item on an objective trigger?
Probably yes. The AG hinted at this distinction in another 2013 opinion (13-013): a statute that becomes effective when an objective condition is met (e.g., when Commonwealth revenues hit a certain level) doesn't require anyone to exercise judgment on the substance of the legislation; it just plugs in a number. The constitutional problem arises when the conditioning involves discretion and judgment about whether the substantive policy should go forward.

Could the General Assembly delegate to the executive branch?
That is a different question (and a much-litigated one). The non-delegation doctrine in Virginia, like its federal counterpart, generally permits delegations to agencies as long as the legislature supplies an intelligible principle to guide implementation. The 2013 opinion does not address that boundary. It addresses only delegation to a subset of the legislature itself.

Background and statutory framework

Constitutional provisions:

• Va. Const. art. IV, § 11: prescribes how a bill becomes law, including the supermajority requirement for budget bills.
• Va. Const. art. IV, § 14: confirms the General Assembly's broad legislative authority "not herein forbidden or restricted."
• Va. Const. art. V, § 6: presentment to the Governor for signature or veto.
• Va. Const. art. I, § 5 and art. III, § 1: separation of powers, raised in a footnote as a potential further problem if executive or judicial members were involved.

The interpretive moves:

• Presumption of constitutionality: enactments are presumed constitutional, and the Supreme Court "will not invalidate a statute unless that statute clearly violates" the Constitution.
• The General Assembly is not granted authority but rather is restrained; it has all powers except those prohibited by the Constitutions.
• Express prohibitions in the Constitution bind directly; the General Assembly cannot do indirectly what it cannot do directly.
• For budget items specifically, the Constitution imposes both substantive (majority of all elected members) and procedural (named, recorded) requirements that cannot be circumvented by delegation to a subset.

Citations

• Va. Const. art. IV, §§ 11, 14
• Va. Const. art. V, § 6
• Va. Const. art. I, § 5; art. III, § 1
• Marshall v. N. Va. Transp. Auth., 275 Va. 419, 657 S.E.2d 71 (2008)
• Harrison v. Day, 201 Va. 386, 111 S.E.2d 504 (1959)
• In re Phillips, 265 Va. 81, 574 S.E.2d 270 (2003)
• City Council of Emporia v. Newsome, 226 Va. 518, 311 S.E.2d 761 (1984)
• Heublein, Inc. v. Dep't of Alcoholic Beverage Control, 237 Va. 192, 376 S.E.2d 77 (1989)
• Hess v. Snyder Hunt Corp., 240 Va. 49, 392 S.E.2d 817 (1990)
• Blue Cross of Va. v. Commonwealth, 221 Va. 349, 269 S.E.2d 827 (1980)
• Dean v. Paolicelli, 194 Va. 219, 72 S.E.2d 506 (1952)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/13-012_Cline_rvsd.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

February 22, 2013

The Honorable Ben L. Cline
Member, House of Delegates
General Assembly Building Room 722
Post Office Box 406
Richmond, Virginia 23218

Dear Delegate Cline:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire whether the General Assembly, as part of enacting the budget, may delegate authority to make spending decisions regarding Medicaid to a smaller sub-group of elected officials, including members of the General Assembly.

Response

It is my opinion that the General Assembly may not delegate final legislative authority regarding budget or other matters to a committee composed of a subset of the members of the General Assembly.

Applicable Law and Discussion

In your inquiry, you hypothesize a proposal for the General Assembly to enact a statute that delegates final authority regarding budget decisions related to Medicaid to what amounts to a subcommittee composed of somewhere between 6 and 12 members from the two houses of the General Assembly. Specifically, the proposal is for the General Assembly to pass budgetary language related to Medicaid that will become effective only if, at some point after the General Assembly has passed the law and the Governor has signed it, a subset of members of the General Assembly (not constituting a majority of each house) votes that certain conditions have been met.

Any analysis of a proposed statute's constitutionality begins with the recognition that the General Assembly does not operate under a grant of authority, but rather, that it has all powers except those prohibited by either the Virginia or United States Constitutions.[1] Enactments of the General Assembly are presumed to be constitutional, and the Virginia Supreme Court "will not invalidate a statute unless that statute clearly violates a provision of the United States or Virginia Constitutions."[2] The Supreme Court will "give the Constitution [of Virginia] a liberal construction in order to sustain the enactment in question, if practicable...."[3] and "every reasonable doubt regarding the constitutionality of a legislative enactment must be resolved in favor of its validity."[4]

While the General Assembly's powers are broad, they are not absolute. "An act is unconstitutional if it is expressly prohibited or is prohibited by necessary implication based upon the provisions of the Constitution of Virginia or the United States Constitution."[5] Furthermore, the General Assembly is prohibited from doing indirectly that which the Virginia Constitution prohibits it from doing directly.[6]

Article IV, § 11 specifies how a bill becomes a law. Specifically, it provides that:

No bill shall become a law unless, prior to its passage: (a) it has been referred to a committee of each house, considered by such committee in session, and reported; (b) it has been printed by the house in which it originated prior to its passage therein; (c) it has been read by its title, or its title has been printed in a daily calendar, on three different calendar days in each house; and (d) upon its final passage a vote has been taken thereon in each house, the name of each member voting for and against recorded in the journal, and a majority of those voting in each house, which majority shall include at least two-fifths of the members elected to that house, recorded in the affirmative.

Thus, for any enactment to become effective, it must be passed by a majority of the members of each house of the General Assembly. Furthermore, it must be then presented to the Governor for his signature or veto.[7]

While the general rule is that, assuming a quorum, a simple majority of those voting in each house is all that is necessary to effectuate an enactment, budgetary matters have more stringent requirements. Specifically,

[n]o bill which creates or establishes a new office, or which creates, continues, or revives a debt or charge, or which makes, continues, or revives any appropriation of public or trust money or property, or which releases, discharges, or commutes any claim or demand of the Commonwealth, or which imposes, continues, or revives a tax, shall be passed except by the affirmative vote of a majority of all the members elected to each house, the name of each member voting and how he voted to be recorded in the journal.[8]

Accordingly, budget matters require the affirmative vote of at least 51 members of the House of Delegates and 21 members of the Senate, regardless of how many members actually vote on the matter.

These provisions limit the authority of the General Assembly. The General Assembly may not avoid them by simply passing a statute that provides that an act, or part of an act, will become effective in the future if a subset of the General Assembly determines that certain conditions are met or that prudence dictates that the act becomes effective.[9]

Thus, while the General Assembly has the authority and responsibility to pass legislation related to budgetary matters, it may only exercise that power consistent with the provisions of Article IV, § 11 and may not delegate the decision of whether a budgetary enactment becomes effective to a subset of its members.

Conclusion

Accordingly, it is my opinion that the Virginia Constitution prohibits the General Assembly from delegating final legislative authority regarding budget or other enactments to a committee composed of a subset of the members of the General Assembly.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General of Virginia

[1] Va. Const. art. IV, § 14 ("The authority of the General Assembly shall extend to all subjects of legislation not herein forbidden or restricted."); Harrison v. Day, 201 Va. 386, 396, 111 S.E.2d 504, 511 (1959) (The Virginia Constitution "is not a grant of legislative powers to the General Assembly, but is a restraining instrument only, and, except as to matters ceded to the federal government, the legislative powers of the General Assembly are without limit.").

[2] Marshall v. N. Va. Transp. Auth., 275 Va. 419, 427, 657 S.E.2d 71, 75 (2008) (citing In re Phillips, 265 Va. 81, 85-86, 574 S.E.2d 270, 272 (2003); City Council of Emporia v. Newsome, 226 Va. 518, 523, 311 S.E.2d 761, 764 (1984)).

[3] Id. at 428, 657 S.E.2d at 75 (citing Heublein, Inc. v. Dep't of Alcoholic Beverage Control, 237 Va. 192, 195, 376 S.E.2d 77, 78 (1989)).

[4] Id. (citing Hess v. Snyder Hunt Corp., 240 Va. 49, 53, 392 S.E.2d 817, 820 (1990). See Blue Cross of Va. v. Commonwealth, 221 Va. 349, 358-59, 269 S.E.2d 827, 832-33 (1980); In re Phillips, 265 Va. at 85-86, 574 S.E.2d at 272.

[5] Id. at 428, 657 S.E.2d at 75-76 (citing Dean v. Paolicelli, 194 Va. 219, 227, 72 S.E.2d 506, 511 (1952); Kirkpatrick v. Bd. of Supvrs., 146 Va. 113, 126, 136 S.E. 186, 190 (1926); Albemarle Oil & Gas Co. v. Morris, 138 Va. 1, 7, 121 S.E. 60, 61 (1924); Button v. State Corp. Comm'n, 105 Va. 634, 636, 54 S.E. 769, 769 (1906); Smith v. Commonwealth, 75 Va. (1 Matt.) 904, 907 (1880); see also Sch. Bd. v. Shockley, 160 Va. 405, 413, 168 S.E. 419, 422 (1933)).

[6] Marshall, 275 Va. at 435, 657 S.E.2d at 80.

[7] Va. Const. art. V, § 6.

[8] Va. Const. art. IV, § 11.

[9] In your inquiry, you have not provided sufficient specifics to allow me to address other possible constitutional infirmities that may be present in such a proposal. For example, if members of the executive or judicial branches are involved in the process, the proposal may represent an unconstitutional violation of the Separation of powers. See Va. Const. art. I, § 5 & art. III, § 1. However, I would need additional specifics to address this or other potential constitutional concerns.