The House of Delegates is seeking to reclaim authority wrongfully taken by the executive branch in Virginia. Concerned about the pointed nature of the resolution, Speaker Howell may be inadvertently diluting the grant of authority set to be debated in a week.[read_more]
In less than nine months from taking office we have seen one statewide elected Democrat act in direct contravention of his office, and another threaten to unilaterally expand the powers of the executive in order to achieve what he was denied by the legislature. The House of Delegates is attempting to push back against these affronts to office made by Governor McAuliffe and Attorney General Herring. H.R. 541 was submitted June 11, 2014 for consideration and has been awaiting action.
The original problem as envisioned by the drafters of the resolution was Attorney General Herring’s refusal to allow special counsel to defend the Marshall-Newman Amendment banning gay marriage.
The Original Solution
H.R. 541 as drafted, solely addresses the issue of defense of the Marshall-Newman Amendment. It is not a call for impeachment of A.G. Herring or other extreme measure. The bill simply sought to authorize “the Speaker of the House . . . to employ legal counsel to represent the House of Delegates in pending litigation involving the challenge of the constitutionality of Article I, Section 15-A (the marriage amendment) of the Constitution of Virginia.”
Changes to H.R. 541 have been circulating taking an even more pointed stance against A.G. Herring’s behaviors and in favor of the Marshall-Newman Amendment. H.R. 541 was not, and is not in its final stage.
Not everyone, your author included, is excited about such a resolution addressing this issue.
Tweaked to the point of little meaning
Especially since the late June session of the G.A. where language was entered into the budget removing all identifiable authority to expand Medicaid, Governor McAuliffe has claimed he will find a way to expand Medicaid unilaterally. McAuliffe’s threats to bring President Obama style executive fiat to the Commonwealth fizzled this week, but the threat to usurp the powers of the legislature remain.
Given the additional danger of unilateral expansion of Medicaid, and the brazen attack on Virginia’s Constitution by its elected defender, more needs to be done.
The result coming out of Speaker Howell’s office gives broad authority. Specifically it states:
1. “That the Speaker of the House hereby be authorized to employ legal counsel in any proceeding in which a provision or provisions of the Constitution of Virginia are contested or are at issue, or in which a provision or provisions of the Constitution of Virginia are contested or are at issue, or in which the constitutionality , legality, or application of a law established under legislative authority is at issue and the Governor and Attorney General choose not to defend the provision or law in such a proceeding”
and 2. “That the the Speaker of the House hereby be authorized to employ legal counsel to represent the House of Delegates to halt any attempt by the Governor to take actions prohibited by law”
There is no mention of Medicaid expansion or defending the Marshall-Newman Amendment, the two identifiable purposes behind HR 541. The language, in being expanded to every possible usurpation of legislative and Virginia Constitutional power, ceases to have the definitive meaning necessary to ensure that action will be taken by Speaker Howell.
An Easy Fix
The broad language is useful just in case there is a future instance of the Governor or A.G. overstepping each person’s authority. Nonetheless, the resolution still needs to address the issues that brought the resolution to the forefront.
The dramatic overhaul of the legislation being considered by others need not come forward if the resolution still addresses the issues that brought the resolution to the forefront.
This can be done simply by adding two phrases to the above paragraphs:
At the end of paragraph 1 add “such as in the case of Attorney General Herring actively advocating against Article I, Section 15-A of the Virginia Constitution (the Marriage Amendment).”
At the end of paragraph 2 add “such as in the case of Governor McAuliffe expanding Medicaid without legal and budgetary authorization from the General Assembly.”
A couple of easy tweaks, and the resolution not only accomplishes its original goal but insures that action will be taken on hot button issues and that amounts to more than mere words.