The Honorable Terence R. McAuliffe

Governor of Virginia

Patrick Henry Building

1111 East Broad Street

Richmond, Virginia 23219

Dear Governor McAuliffe:

I write to you in my capacity as Keeper of the Rolls of the Commonwealth regarding the communication of your purported veto of paragraph JJJ. 4. of Item 306 of House Bill 30, 2016.¹  Based upon legal advice, it is my opinion that the purported veto does not constitute an item as required by Article V, Section 6 of the Constitution of Virginia. As a result, it is my duty not to publish the purported veto for the reasons set forth in this letter.

All item vetoes of an appropriation bill must conform to the requirements of Article V, Section 6 of the Constitution of Virginia. The interpretation of Article V, Section 6 by the Supreme Court of Virginia in Brault v. Holleman 217 Va. 441 (1976) is dispositive of the constitutionality of the purported veto in question:

While the Governor is empowered to veto any particular item or items of an appropriation bill, he must, for his veto to be valid, strike down the whole of an item; he cannot disapprove part of an item and approve the remainder... Where a condition is attached to an appropriation, the condition must be observed. The Governor cannot veto the appropriation without also disapproving the condition; correspondingly, he cannot veto the condition without also disapproving the appropriation.

Paragraph 4. provides that no general or nongeneral funds shall be used for costs incurred to implement coverage for newly eligible individuals under a provision of the federal Patient Protection and Affordable Care Act, and explicitly conditions the appropriations in House Bill 30 on this prohibition. Your purported veto did not, however, veto the appropriations covered by the conditions.  Accordingly, pursuant to Brault, the veto is constitutionally invalid because it attempts to "veto the condition without also disapproving the appropriation."

For these reasons, the portion of House Bill 30 covered under the purported veto of paragraph JJJ. 4. of Item 306 constitutes less than an item in a contravention of Article V, Section 6, and I am duty-bound not to publish it.

Sincerely,

G. Paul Nardo

cc:  The Honorable William J. Howell, Speaker, Virginia House of Delegates

      The Honorable S. Chris Jones, Chair, House Appropriations Committee

      The Honorable Richard Brown, Secretary of Finance

      Members, Virginia General Assembly

      Robert P. Vaughn, Staff Director, House Appropriations Committee

      Betsey Daley, Staff Director, Senate Finance Committee

_________________________

¹Paragraph 4. states:

4. As a condition on all appropriations in this act and notwithstanding any other provision of this act, or any other law, no general or nongeneral funds shall be appropriated or expended for such costs as may be incurred to implement coverage for newly eligible individuals pursuant to 42 U.S.C. § 1396d(y)(l)[2010] of the Patient Protection and Affordable  Care Act, unless included  in an appropriation bill adopted by the General Assembly on or after July 1, 2016.