GOP Controlled House of Delegates Wants Power to Defend Laws

Attorney General Mark Herring

For the first time in 20 years a Democrat, Mark Herring, holds the Office of Attorney General and Republicans in the GOP controlled House of Delegates are freaking out.  Under Republican Attorney Generals even the batshit craziest laws passed by a Republican majority were guaranteed to be defended when challenged.  Now, the minions of The Family Foundation are fearful that Herring might rightly refuse to defend clearly unconstitutional laws so favored by the Virginia GOP and the Christofascists at The Family Foundation.  The solution?  Pass legislation that would allow House Republicans defend insane laws much as the Republicans in the U.S. House of Representatives defended DOMA.  Here are highlights from the Washington Post:

The Republicans who dominate the Virginia House of Delegates are gearing up for legal battle with state Attorney General Mark R. Herring, the first Democrat to hold the post in twenty years.

Del. C. Todd Gilbert (R-Shenandoah) has put forward a bill that would give General Assembly members legal standing to represent the commonwealth when the governor and attorney general choose not to defend a law.

If the bill succeeds, it could set up a situation like the one in the U.S. House of Representatives, where Republicans hired a private attorney to defend the Defense of Marriage Act in court.
The attorney general’s office declined to comment directly on the legislation, but spokeswoman Ellen Qualls noted that “the constitution of Virginia provides for a duly elected attorney general to do this very job.”

Republicans said they are concerned about a few policies in particular: abortion clinic regulations, the constitutional ban on same-sex marriage and redistricting. On the campaign trail, Gov. Terry McAuliffe, then the Democratic gubernatorial candidate, promised to use administrative powers to make newly enacted clinic regulations less onerous, and Herring said he wasn’t sure he would defend those regulations. The new attorney general also declined to say before taking office whether he would defend the marriage ban in court. Two challenges to the constitutionality of the marriage amendment are currently underway.

Democrats were more skeptical.  “If someone doesn’t like the fact that the attorney general is defending or not defending the law, the solution is an election,” Del. Scott A. Surovell (D-Fairfax) said. Individual lawmakers could hire a lawyer if they want, he said, but taxpayers shouldn’t pay for it.

Gilbert argued that the legislation is not partisan because it could benefit Democrats in a future administration. “It doesn’t give any particular party any advantage,” he said.

And even if the bill fails or McAuliffe vetoes it, Gilbert said the House might already have standing to defend laws on the books. “It’s not crystal clear,” he said. 

Should Herring decline to defend a law, he can point to recent precedent. As attorney general, Ken Cuccinelli II (R) refused to defend one of then-Gov. Robert F. McDonnell’s education reforms in court, saying he believed the legislation, allowing the state to take over failing schools, is unconstitutional.

 Sadly, it's all too typical of the Republicans - special rights for themselves and lesser rights for everyone else.  If a bill is passed, I hope McAuliffe vetoes it.