Opinion
Mark R. Herring (R) is sworn in as Virginia Mark R. Herring (R) is sworn in as Virginia's attorney general by retired Judge Thomas Horne in Richmond, Virginia, January 11, 2014. REUTERS/Mike Theiler  

The runaway progressive regime: Disregard for the rule of law in Virginia and the administration

Photo of Jim Gilmore
Jim Gilmore
Former Governor of Virginia

This week in his State of the Union President Obama continued what has become a disturbing trend among liberal officeholders of substituting their political preferences for their legal and constitutional responsibilities. As a former governor, attorney general and prosecutor, I listened in growing dismay as the president ticked off a list of executive actions of questionable authority, acting by decree and without legislation.

Unfortunately, this is nothing new from the president or his political allies. The administration’s “fixes” for Obamacare have also been unilateral changes to the law by the executive branch without authority from Congress. While none of us likes Obamacare, the Constitution clearly delegates the power to write and amend laws to the Congress, not to the president. However, this president has not been one to let something as trivial as the Constitution constrain his actions.

Recently President Obama told us “We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen and I’ve got a phone,” declaring that he would make policy unilaterally if Congress refused to grant his liberal wish list.

Indeed President Obama’s regard for the separation of powers is so low that in 2012, his derisive comments about the U.S. Supreme Court’s power of judicial review prompted a federal appeals court to require the Obama Department of Justice to submit a letter clarifying that the administration did, in fact, recognize the courts’ power of judicial review established by the Supreme Court over two hundred years ago in Marbury v. Madison.

It would be bad enough if the impulse to place politics above the rule of law were limited to President Obama, but in fact this behavior represents a disturbing trend among liberals in state government as well. Just last week in my home state of Virginia, newly sworn-in Attorney General Mark Herring announced that he would not defend the amendment to Virginia’s constitution defining marriage as between one man and one woman, approved by Virginia voters in 2006.

As a former Virginia attorney general, I find this astounding. No matter how anyone feels about same sex marriage or any other issue, the matter has to be decided within our constitutional system. This is about the rule of law and proper legal procedure restraining the acts of public officials who are not above the law.

Under Virginia law, the Attorney General has an obligation to defend the Constitution of Virginia. He is also required to represent Virginia when the state’s position is in conflict with the federal government. Attorney General Herring’s action is in violation of both of those rules.

It is not enough for a president, a governor, or an attorney general to disagree with a law: the executive branch of our federal, state, and local governments have responsibilities – whether it’s under a state constitution or the federal Constitution – to enforce and defend the law. If there is a law that any of them disagree with, it’s their responsibility to work with the legislature to change it. There is no power to grant “exemptions” or variances, such as those that the Obama White House has granted to some people and groups under Obamacare. Such actions are illegal and unenforceable in court.

It seems that both President Obama and Attorney General Herring, and the liberal talking heads cheering them on, consider their various political preferences so important that they are willing to recklessly abdicate the responsibilities to the Constitution and the rule of law that come with the offices to which they were elected.

Liberals’ sense of constitutional obligations and the rule of law seems to be dictated by politics. As a candidate in 2008, President Obama attacked then President Bush’s use of signing statements as an “abuse of power” and a “license to evade laws that the president does not like or as an end run around provisions designed to foster accountability.” Five years into his presidency, President Obama has issued nearly as many signing statements as President Bush issued in eight years. During his campaign for Attorney General, Mr. Herring bitterly campaigned against the record of Attorney General Ken Cuccinelli, complaining that he often made legal decisions based on his political views, and not the law.