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Another Virginia AG accused of activism

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Posted: Monday, May 5, 2014 5:07 pm

RICHMOND — During his long and hard-fought campaign for attorney general, Mark R. Herring vowed to “take politics out of the office” and “put the law first.”

In his first four months in office, he has twice made national news — by deeming Virginia’s ban on same-sex marriage unconstitutional and declaring that children of illegal immigrants with deferred action status qualify for in-state tuition.

That has led some to conclude that the former state senator from Loudoun County doesn’t shy from activism and is already laying the groundwork for a gubernatorial bid.

“I don’t think there is any question that Mark Herring is gearing up to run for governor in a few years,” said Del. C. Todd Gilbert, R-Shenandoah. “Everyone just accepts that as true and, unfortunately, he is putting his posturing for governor ahead of giving good legal advice.”

In an interview in September, then-candidate Herring said he would be different from his predecessor, Republican Ken Cuccinelli.

“We’ve seen what happens when we elect an attorney general with that kind of ideology-driven agenda,” Herring said. “It hasn’t been good for Virginia. It’s been costly; it’s undermining the credibility and the integrity of the office.”

Opponents say Herring waited less than three weeks to begin pushing his own agenda when he found Virginia’s ban on same-sex marriage to be unconstitutional and announced that he would side with the plaintiffs in Bostic v. Rainey, a federal lawsuit aimed at overturning the ban.

Last week, Herring’s DACA decision further raised opponents’ concerns that he is using the Office of Attorney General to advance the Democratic agenda in a state where Republican-controlled legislative committees have repeatedly voted against extending in-state tuition rates to children of illegal immigrants.

President Barack Obama announced in June 2012 that the U.S. would defer deportation for young people who came to this country illegally as children. About 8,100 young people in Virginia had their applications for the Deferred Action for Childhood Arrivals program approved as of December.

“What’s significant is that these two controversial decisions came in close succession,” said Larry J. Sabato, head of the Center for Politics at the University of Virginia.

“Had Herring been concerned about the reaction to his stance on the same-sex marriage appeal, he probably would have avoided controversy for a while,” Sabato said. “But this second path-breaking decision shows it’s likely to be his pattern during his term, when appropriate situations present themselves. Herring has already become a hero to Democrats and a devil figure for Republicans.”

And Herring’s actions draw parallels to his predecessor, Cuccinelli, said A.E. Dick Howard, a legal expert and principal author of the modern Virginia Constitution.

“It you take the two of them together, it seems to me there is something of a sea change in how attorney generals view their office compared to earlier times when the attorney general was simply the commonwealth’s legal officer,” Howard said.



“Traditionally, attorneys general had a fairly low visibility; they were not typically involved in issues that were thought to be highly political. That changed with Cuccinelli, and one gets the impression that Herring takes a fairly robust view of the role of his office. It stirs more political currents than legal questions.”

Yet Howard said that what Herring has done in both cases and much of what Cuccinelli did as attorney general “was fairly within the ambit of what an attorney general is entitled to do, with the exception of Cuccinelli’s suit against the University of Virginia about climate science, which was an abusive use of the powers of the office.”

Howard was one of three constitutional law professors who filed a brief last month backing Herring’s refusal to defend Virginia’s ban on same-sex marriage.

“An attorney general is not an automaton who must blindly support Virginia’s law, especially when he concludes that it conflicts with the [U.S.] Constitution as the supreme law of the land,” wrote Howard and Daniel R. Ortiz of UVa and Carl Tobias of the University of Richmond.

Howard said in an interview that he sees some parity between Herring’s decision not to defend Virginia’s ban on same-sex marriage and Cuccinelli’s federal lawsuit to have the Affordable Care Act declared unconstitutional.

“Each of them took that extra step against the laws, but I don’t think that goes beyond a fair interpretation of what an attorney general is authorized to do. However, what it does suggest is an emerging notion that attorneys general operate more in the world of politics than they used to,” Howard said.

Herring denies pursuing politically based activism.

“I’m doing what an attorney general should be doing, which is applying the law and doing what is right for Virginians,” he told reporters in Richmond on Tuesday.



In Bostic v. Rainey, a federal judge in Norfolk agreed that his legal analysis was correct, Herring said, noting the constitutional scholars’ brief that backed his position.

Herring said his decision to back extending in-state tuition to DACA students simply was meant as legal guidance for state-funded schools and universities. He said his statement interpreted current law but did not change it.

“What this shows is that those critics just disagree with marriage equality and, in this [DACA] situation, again [the critics] are unhappy with these students getting in-state tuition,” Herring said.

With all three statewide offices in Democratic hands, Republicans cling to their power base in the House of Delegates — but they decry an attorney general who, in their view, has gone rogue.

“None of this really surprises me,” said Gilbert, a high-ranking member of the House Republican leadership.

“We have seen overreach from the executive branch on the federal level, we have seen the governor posturing to take executive action on, potentially, Medicaid and the budget, and now we see Mark Herring essentially declaring what the law is, when he knows well that this in-state tuition issue we have been fighting in the legislature for many years.”

Gilbert, like many of his caucus members, believes he knows what will be the attorney general’s next big battle — aiding Gov. Terry McAuliffe in finding a way to extend Medicaid coverage for up to 400,000 Virginians against the will of House Republicans.

While McAuliffe has frequently said he would review his legal options, Herring last week shied from giving a clear answer to whether the governor has asked him for legal advice on the issue. The attorney general said it would be “premature” to comment.

Herring will likely be a big player in the process, said Henry L. Chambers Jr., a professor at UR’s law school.

“The attorney general’s decision on what the governor could do on his own would play a big part in what he ultimately decides to do,” Chambers said.

“It’s hard to imagine the governor could change a program substantially on his own. He better have some really good advice from the attorney general on that one, and I’d be really interested in seeing what the attorney general has to say.”

Herring spokesman Michael Kelly said Friday that the attorney general believes expanding Medicaid coverage in conjunction with the legislature is “the best path forward.”

He added: “It’s mighty early for folks to be speculating about what might be next when he’s only been in office for a little more than 100 days.”



Kelly also said accusations of political activism aren’t justified, because Herring also defends state law that he disagrees with.

For example, the attorney general has continued to defend the Republican redistricting plan from October against a legal challenge — in spite of his vote against the plan as a state senator because he thought it was bad policy.

Sabato said Herring has decided to embrace his post fully and take an expansive view of his powers.

“It’s bold, even breathtaking, since he was elected by so little,” Sabato said. Herring prevailed in a recount, topping Sen. Mark D. Obenshain, R-Harrisonburg, by fewer than 1,000 votes of 2.2 million cast.

Sabato compared Herring’s enthusiasm and confidence to that of President George W. Bush, who lost the popular vote in 2000 but “decided to embrace the presidency as though he had won a landslide,” especially after the terror attacks of Sept. 11, 2001.

Sabato said he has little doubt about Herring’s motivation to run for governor in 2017 and that he is already working to get a head start on his likely Democratic rival, Lt. Gov. Ralph S. Northam.

“The last [elected] Virginia attorney general who didn’t run for governor was Democrat Bob Button, who served two terms back in the 1960s,” Sabato said.

Howard added that in this era of political partisanship, activism is embraced and promoted.

“You’re stepping into office in a climate which is different than what it used to be and which is kind of an invitation to the newly elected attorney general to use that opportunity, and clearly Herring is doing that,” he said.

“It doesn’t really depend on which party one belongs to. If you want to use the label ‘activist,’ it’s not whether one is a Republican or Democrat, it’s about how they view the office of attorney general and what it allows them to do,” Howard said.

McAuliffe said Thursday on WTOP radio that the attorney general is not sidestepping the legislature and taking his authority too far.

“He’s doing what the attorney general should be doing, interpreting the laws as they exist,” the governor said.


Times-Dispatch staff writer Olympia Meola contributed to this story.

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