CHARLESTON – The Republican nominee for attorney general says Darrell McGraw should be giving legal advice to the governor and state Legislature after the U.S. Supreme Court's recent decision on "Obamacare."
McGraw's chief deputy AG counters by saying the office has nothing to do with this federal issue and such a discussion would fall under attorney-client privilege anyway.
On Thursday, Patrick Morrisey's campaign issued a press release urging McGraw "to disclose whether he had provided legal counsel to the state Legislature and the Governor on the Medicaid issues arising from the Supreme Court's recent decision on Obamacare."
"An Attorney General should serve as general counsel to the state's agencies and the Medicaid Program," Morrisey said. "Where is Darrell McGraw on this critical issue facing West Virginia?"
On June 28, the U.S. Supreme Court ruled that the controversial provision of health care reform requiring individuals to purchase insurance or face a financial penalty is a constitutional tax.
More than two years after President Barack Obama's Patient Protection and Affordable Care Act was signed into law, the nation's highest court ruled 5-4 that most of it is constitutional.
"In a press conference a day after the Supreme Court decision, I outlined the various options available to the Governor and the state Legislature on the Medicaid expansion," Morrisey said. "I answered questions about how Governor (Earl Ray) Tomblin could legally interpret the Supreme Court decision and made clear that I still favored repeal of Obamacare. Two weeks later, we have heard nothing from the Attorney General's office.
"We understand that distributing trinkets and wasting millions of taxpayer dollars on self-promotion takes time, but it is critical for a candidate for Attorney General to talk about important issues facing West Virginia."
Fran Hughes, McGraw's chief deputy AG, said Thursday the AG's office can't discuss what it may or may not have discussed with a client. In this case, the client would be the governor's office or the state Legislature.
"First, it is not our privilege to waive," Hughes said. "We are like a law firm. We don't go out and disclose what advice we give our clients ... or even if we talked to our client about a certain topic."
She also said any opinion from the AG's office would be moot anyway.
"Second, the Supreme Court of the United States already has decided this," Hughes said. "It doesn't matter what I think, what Attorney General McGraw thinks, what Mr. Morrisey thinks.
"We have no role in defeating 'Obamacare.' That has to be done on a federal level. It needs to be taken up with Congress. They can overturn it. The Attorney General's office in West Virginia doesn't have anything to do with it."
Still, Morrisey said McGraw needs to discuss the matter, and he offered a few ideas of forums.
"Given the stakes involved in the health care law, I urge Darrell McGraw to step forward with his ideas about how the state may proceed," he said. "In addition, we should have a debate on this topic so that voters can judge who is best qualified to give counsel to a program that represents 20 percent of the state budget."
Morrisey said West Virginia deserves a change.
"West Virginia doesn't just need an Attorney General's office," he said. "We need an Attorney General in that office. It's time to elect someone who has in-depth experience on issues West Virginians care about."
Hughes also questioned what Morrisey dislikes about the act.
"I also wonder what, in particular, he finds offensive in the legislation," she said. "Is it the elimination of the donut hole for seniors in West Virginia? From what I can tell, a lot of people in West Virginia will be insured who never have been insured before.
"All of this criticism Mr. Morrisey has about the Attorney General's office is misguided. He would be better off talking about something germane to what we can do. On this issue, there is nothing we can do."
"Once again, the Attorney General's position is misguided," he said. "Of course, no one is asking for privileged or confidential information to be released. However, it is absolutely appropriate for McGraw to discuss the state's legal options about permissible ways to handle the Medicaid portion of the Supreme Court case.
"While McGraw may not understand this, providing broad based legal options to the public is much different than releasing confidential information."
Morrisey stressed the potential issues the state's Medicaid program could face.
"Contrary to McGraw's assertion, this issue is far from moot," he said. "Not only was the decision regarding expansion left to the states, but there are real questions about how this case should be interpreted. It's public record that the state and the governor are considering options.
"The public is not looking for confidential information, but they want to and are entitled to know the legal impact of this case on the Medicaid Program so it can be protected for our most vulnerable citizens. Every other state Attorney General in America seems to be focusing on this except Darrell McGraw."
Morrisey said this issue is one of the key differences between him and McGraw.
"I believe West Virginians deserve an Attorney General who will be a leader, maintain scrupulous legal ethics, and be transparent with the public," Morrisey said. "West Virginians also deserve an Attorney General who has a working understanding of the Medicaid Program and appreciates that the section of Obamacare related to Medicaid is far from moot as a legal matter.
"I have consistently opposed Obamacare because, among other things, I believe that the individual mandate is the opposite of freedom. Sadly, McGraw seems to support everything President Obama proposes, including the individual mandate.
"It's time to elect an Attorney General who won't be a close ally of the President and who will fight the individual mandate and other Obama job-killing policies."