From the Archives: Federal court strikes down Virginia same-sex marriage ban but stays order

Publisher's note: This article was originally published on Examiner.com on February 13, 2014. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site was scheduled to go dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

Federal court strikes down Virginia same-sex marriage ban but stays order

In a case that involves a confusing mix of plaintiffs, defendants, and ex-defendants who have taken the side of the plaintiffs, a federal judge late on the eve of Valentine's Day struck down both Virginia's statutes prohibiting same-sex marriage and a state constitutional amendment that does the same

“The Court is compelled to conclude that Virginia's Marriage Laws unconstitutionally deny Virginia's gay and lesbian citizens the fundamental freedom to choose to marry,” wrote Judge Arenda L. Wright Allen of the U.S. District Court for the Eastern District of Virginia in a 41-page opinion. “Government interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country's cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family.”

In the case of Bostic v. Rainey, Wright Allen (nominated by President Barack Obama and confirmed unanimously by the U.S. Senate in 2011) granted the plaintiffs request for summary judgment and found that “Va. Const. Art. I, § 15-A, Va. Code §§ 20-45.2, 20-45.3, and any other Virginia law that bars same-sex marriage or prohibits Virginia's recognition of lawful same-sex marriages from other jurisdictions unconstitutional. These laws deny Plaintiffs their rights to due process and equal protection guaranteed under the Fourteenth Amendment of the United States Constitution.”

At the same time, Wright Allen stayed her order pending review by the Fourth Circuit Court of Appeals, based in Richmond.

In strong language, Wright Allen stated that the Commonwealth of Virginia's defense of its same-sex marriage bans failed to meet even the very low legal hurdle of rational-basis analysis

“Virginia's Marriage Laws fail to display a rational relationship to a legitimate purpose,” she wrote, “and so must be viewed as constitutionally infirm under even the least onerous level of scrutiny. Accordingly, this Court need not address Plaintiffs' compelling arguments that the Laws should be subjected to heightened scrutiny."

If there are any “legitimate purposes” behind the same-sex marriage bans, she argued, they “share no rational link with Virginia Marriage Laws being challenged. The goal and the result of this legislation is to deprive Virginia's gay and lesbian citizens of the opportunity and right to choose to celebrate, in marriage, a loving, rewarding, monogamous relationship with a partner to whom they are committed for life. These results occur without furthering any legitimate state purpose.”

Wright Allen's ruling follows similar federal court decisions in Utah and Oklahoma (which are cited in her opinion) and, most recently, Kentucky.

Virginia Attorney General Mark Herring, who made national headlines in January when he refused to defend the marriage laws and instead presented a brief on behalf of the gay couples seeking to overturn the ban, issued a short statement in advance of holding a press conference on Friday morning:

In a press release, Herring said that the district court's decision "is a victory for the Constitution and for treating everyone equally under the law. It is the latest step in a journey towards equality for all Virginians, no matter who they are or whom they love.”

Acknowledging the court's stay of its order, Herring noted that the legal process “will continue to play out in the months to come, but this decision shows that Virginia, like America, is coming to a better place in recognizing that every Virginian deserves to be treated equally and fairly.”

Herring's news conference will take place at 11:45 a.m. on Friday, February 14, in the auditorium of the Pocahontas Building at 900 E. Main Street in Richmond.

SUGGESTED LINKS

Virginia Attorney General Mark Herring will challenge anti-gay marriage laws
Obama’s announcement prompts question, Is gay marriage a ‘new right’?
LP gubernatorial hopeful Robert Sarvis aims for marriage equality in Virginia
Libertarians praise Supreme Court's gay marriage ruling in DOMA case
Author David Lampo brings gay-rights message to conservative Republicans

Original URL:  http://www.examiner.com/article/federal-court-strikes-down-virginia-same-sex-marriage-ban-but-stays-order

From the Archives: Virginia Attorney General Mark Herring discusses federal gay marriage appeals

Publisher's note: This article was originally published on Examiner.com on September 14, 2014. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site was scheduled to go dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

Virginia Attorney General Mark Herring discusses federal gay marriage appeals

After offering opening remarks to the participants at the third annual Charlottesville Gay Pride Festival in Lee Park on September 13, Virginia Attorney General Mark Herring spoke to reporters about the same-sex marriage cases that may be heard by the U.S. Supreme Court in its coming term.

Answering questions posed by the Charlottesville Libertarian Examiner, Herring, a Democrat who served in the state Senate before his 2013 election as attorney general, explained how his mind has been changed about gay marriage.

As a senator, Herring had voted in favor of the so-called Marshall-Newman amendment, which added a prohibition on same-sex marriage and civil unions to the bill of rights section of the Virginia Constitution. As attorney general, he refused to defend the amendment and statutes banning gay marriage when they were challenged by same-sex couples seeking legal recognition of their marriages.

After his 2006 vote supporting the constitutional ban, Herring explained, “I saw how it hurt a lot of people. That made me continue to question whether that was the right decision.”

'See things differently'
In the intervening years, he said, “I talked to a lot of people – people at work, constituents, my family -- and I see things very differently now.”

At the time of the marriage amendment vote, Herring said, he was “working to end discrimination but I stopped short of full marriage equality. I came to see that that was wrong, and a lot of people were hurt by it.”

Equality, he continued, “is a bedrock principle of American jurisprudence. Nobody deserves to be discriminated against. Our Constitution guarantees not only gay and lesbian couples equality, it guarantees all Americans equality.”

During its upcoming September 29 conference, the U.S. Supreme Court will be looking at certiorari petitions from various states where anti-same-sex-marriage laws have been challenged. Virginia's case is among them.

“The Oklahoma, Utah, and Virginia cases are all now before the Supreme Court on petitions for appeal,” Herring explained.

“Those petitions have been fully briefed as to whether the cases should be taken by the Court. Whether it's Virginia's case or whether it's one of the others or a group of them, it's difficult to predict.” Nonetheless, Herring added, “I feel confident that the court will consider whether to take one, or some, or all of these cases.”

Virginia's case involves two couples, one a male couple from Norfolk who sought a local marriage license and were denied it. The other is a female couple who were legally married in California and adopted a child, but whose marriage goes unrecognized by Virginia, leading to complications regarding the custody status of the adopted child.

Herring explained that “Virginia's case would address all of those legal issues,” adding that “it would be good for Virginia. Not only do I feel we have a really strong legal team but the Commonwealth, I know and we know, has moved forward since the key landmark civil rights decisions over the last 50 years where Virginia was on the wrong side.”

Brown and Loving
Herring noted that the famous 1954 decision that ended racial segregation of government schools, Brown v. Board of Education, included a case from Prince Edward County, Virginia, but “Virginia and its attorney general argued against school desegregation and on the wrong side.”

In the 1967 case that overturned miscegenation laws, Loving v. Virginia, he said, “a couple from Caroline County was denied a marriage license because they were of different races. And again, Virginia argued on the wrong side of that key, landmark decision.”

Herring said he hopes that, “when we look at this issue in the future, people all around the country and our children will know that Virginia was on the right side of history and on the right side of law.”

By deciding not to defend Virginia's laws in these cases, he said, “as Attorney General, I was going to make sure that the injustices in those other landmark civil rights cases would not be repeated this time.”

SUGGESTED LINKS

Author Charles Murray argues same-sex marriage is ‘not a big deal’
Virginia U.S. Senate candidates react to Fourth Circuit gay marriage ruling
Author David Lampo brings gay-rights message to conservative Republicans
Senate candidate E.W. Jackson defends anti-gay stance as ‘fundamental’
‘Flagrant Conduct’ author Dale Carpenter discusses how sodomy laws ended

Original URL:  http://www.examiner.com/article/virginia-attorney-general-mark-herring-discusses-federal-gay-marriage-appeals

From the Archives: Virginia Attorney General Mark Herring highlights opposition to drug-law reform

Publisher's note: This article was originally published on Examiner.com on September 14, 2014. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site was scheduled to go dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

Virginia Attorney General Mark Herring highlights opposition to drug-law reform

After welcoming participants to the third annual Charlottesville gay pride celebration in Lee Park on Saturday, September 13, Virginia Attorney General Mark Herring answered questions from reporters.

In addition to discussing his views on same-sex marriage and sexual orientation discrimination, Herring addressed concerns about drug abuse and proposed reforms to drug laws.

Earlier this month, the Global Commission on Drug Policy, which includes among its members former Secretary of State George Shultz and former Federal Reserve Chairman Paul Volcker, as well as the former presidents of Brazil, Colombia, and Mexico, recommended to the United Nations that currently illicit drugs such as cocaine, heroin, and marijuana should be decriminalized and that the abuse of these drugs should be treated as a health problem not as a criminal matter.

'Deaths and fatalities'
Acknowledging that he has not read the UN commission's report, Herring, a Democrat elected in 2013, said that “as attorney general, one of the first things I did in coming to office is go on a public safety tour all across the Commonwealth. I talked to over 60 different jurisdictions – the law enforcement, commonwealth's attorneys, local elected officials – because I wanted to hear directly from them about the public safety threats that they were facing.

“Over and over in those meetings, one of the things I heard was the problems associated with opiate addiction, prescription drug addiction, and the spike in heroin overdoses and deaths and fatalities.”

Herring said that, based upon what he learned from local officials, “I want to go after those who would put that kind of poison, [such as] potent, deadly heroin, out on the streets. I'm going to aggressively prosecute that and work with local prosecutors to do it. We're going to step up our prevention and education efforts and we're going to partner with local jurisdictions and the U.S. Attorney's office to combat the problem of drug abuse.”

'Not trying to be evasive'
Asked specifically if he opposes drug-law reform efforts, Herring said flatly: “I don't support legalizing all of those dangerous drugs like heroin and opiates that are killing and claiming so many lives of young people.”

With regard to marijuana legalization, Herring hesitated and added, “I'm not trying to be evasive. I know a couple of states have begun to take those steps and before Virginia takes those steps I think we ought to see what [are] the experiences in the other states and then assess it.”

That position is almost identical to that of Herring's predecessor as attorney general, Republican Ken Cuccinelli.

In February 2013, when he was running for governor, Cuccinelli explained to an audience of Albemarle County Republicans that “having data from a couple of states, whole states, that go down this path may not be good news but it will be interesting and it will be something we can learn from,"

Cuccinelli added that legalizing marijuana in Colorado and Washington state is “a peculiar subject but I do think it's important that states try some things they think are appropriate and whether the federal government approves or not, the rest of us watch and learn.”

SUGGESTED LINKS

Ken Cuccinelli clarifies remarks on marijuana legalization as federalism issue
GOP lieutenant governor candidate E. W. Jackson 'certainly used marijuana'
Justin Bieber, Gary Becker, and the future of marijuana prohibition
Virginia Congressman Morgan Griffith clarifies aim of his medical marijuana bill
Virginia Attorney General Mark Herring discusses federal gay marriage appeals

Original URL:  http://www.examiner.com/article/virginia-attorney-general-mark-herring-highlights-opposition-to-drug-law-reform

From the Archives: Federal judge rules Virginia can prohibit Confederate flags on license plates

Publisher's note: This article was originally published on Examiner.com on August 6, 2015. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site is scheduled to go dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

Federal judge rules Virginia can prohibit Confederate flags on license plates

According to a news release from the office of Virginia Attorney General Mark Herring distributed on August 6, a federal judge has decided that the Commonwealth may ban Confederate symbols on specialty license plates, setting in motion a process by which the Department of Motor Vehicles (DMV) will begin to recall all such vehicle tags displaying the Confederate battle flag.

Original decision
Back in 2001, federal Judge Jackson L. Kiser ruled that specialty license plates “conveyed the speech of the driver” and that the state could not deny the application of Sons of Confederate Veterans for a license plate that included the Confederate battle flag. The Fourth Circuit Court of Appeals affirmed Kiser's decision and Virginia chose not to appeal the case to the Supreme Court.

In light of this year's Supreme Court decision in Walker v. Texas Division, Sons of Confederate Veterans, Inc., which “reached the conclusion that specialty license plates represent the state’s speech, not the driver’s,” Kiser vacated his original order from 2001 and lifted the injunction that prevents the Commonwealth from prohibiting Confederate symbols on vehicle license tags.

In issuing his ruling, Kiser wrote that “When the Supreme Court speaks, district courts must listen. In light of the ruling in Walker, the primary rationale for the 2001 judgment and injunction in this case is no longer good law. Specialty license plates represent the government’s speech, and the Commonwealth may choose, consonant with the First Amendment, the message it wishes to convey on those plates. The Commonwealth’s rationale for singling out [Sons of Confederate Veterans] for different treatment is no longer relevant. According to the Supreme Court, the Commonwealth is free to treat SCV differently from all other specialty groups. Because the underlying injunction violates that right, I have no choice but to dissolve it.”

Herring's reaction
In reaction to Kiser's decision, Attorney General Herring said it “will allow Virginia to remove a symbol of oppression and injustice from public display on its license plates.”

He added that "Virginia state government does not have to and will not endorse such a divisive symbol. I appreciate Governor McAuliffe's leadership in calling for the removal of the flag and those on my team who moved quickly to get it done."

Kiser's order came in Sons of Confederate Veterans, Inc. v. Holcomb in the United States District Court for the Western District of Virginia.

SUGGESTED LINKS

Virginia Attorney General Mark Herring discusses federal gay marriage appeals
Virginia Attorney General Mark Herring highlights opposition to drug-law reform
Virginia Attorney General Mark Herring will challenge anti-gay marriage laws
Virginia Congressman Robert Hurt speaks out for free trade in Charlottesville
Presidential candidate Bernie Sanders stumps for support in Charlottesville

Original URL: http://www.examiner.com/article/federal-judge-rules-virginia-can-prohibit-confederate-flags-on-license-plates

Recent Interviews with Virginia Policymakers

Virginia State Capitol

My last post reported on the public appearance in Charlottesville of U.S. Senator Jim Webb, who answered my question about free trade issues during a press gaggle backstage at the Dickinson Auditorium on the campus of Piedmont Virginia Community College.

This was not my only recent encounter with elected officials.  In the past two weeks or so, I have had the opportunity to conduct interviews with several other Virginia policymakers, including Attorney General Ken Cuccinelli, State Senator Mark Obenshain, Delegate Harvey Morgan, and Delegate David Toscano.

My interview with Attorney General Cuccinelli resulted in at least four articles on Examiner.com.

The first addressed what, at the time, was Topic A in the national conversation, the shooting of Arizona Representative Gabrielle Giffords and several others in Tucson.  Six people were killed by alleged gunman Jared Lee Loughner in that incident.

In "Exclusive: Va. Attorney General Ken Cuccinelli reacts to tragedy in Tucson," published on January 12, the Attorney General identified some parallels that are close to home for Virginians:

Cuccinelli said that he has “been watching the information that’s rolled out about” Saturday’s events and that it is natural to ask, “What else could we have done?”

That question, he continued, “walks me right into a lot of the mental health work that I’ve done over the years. I’m still looking at Loughner’s history to see what sort of parallels there are to experiences we’ve had in Virginia, tragically” – referring to the Virginia Tech shootings of April 2007 – “and what sort of systems that, if in place, might have caught and treated this guy.”

In what turned out to be a supplement to an earlier interview I conducted with Maria Everett, executive director of the Virginia Freedom of Information Advisory Council, Cuccinelli spoke to me about his support for a strong FOIA statute and system in Virginia. He expressed concern about proposals to eliminate the FOIA Council.

In "Va. Attorney General Ken Cuccinelli talks about Freedom of Information," published on January 14, Cuccinelli responded to the recommendation of Governor Bob McDonnell's government reform commission that the FOIA Council -- which only has two staff members yet processes upwards of 1,800 inquiries each year -- be cut:

“Obviously,” he said, “I think that to have a robust FOIA you need some central clearinghouse, so if there’s going to be a substitute, which I don’t really see right now, I think their notion is that every agency will just handle its own.”

The commission suggested that the Office of the Attorney General could handle inquiries and disputes about FOIA matters, but Cuccinelli ruled that out as a realistic possibility.

“That’s a natural fallback,” he conceded, “because everybody would then turn to us and say, ‘Do I have to do a, b, or c?’ That’s got its problems.”

Cuccinelli also talked about government transparency more generally, and the need to provide access to budget information to citizens on a ready basis.

It turns out that state Senator Ralph Smith has proposed a rule to make the state budget available on line for scrutiny by both legislators and citizens for at least 72 hours before either chamber of the General Assembly may vote on it.

Cuccinelli pointed out some logistical hurdles that state agencies still face, in "State Senator Ralph Smith and Att'y Gen'l Ken Cuccinelli promote transparency," published on January 16:

“I learned doing the transparency work” in the General Assembly, Cuccinelli said, that “there’s a logistical hurdle to the kind of transparency I’d like to see, which is immediate, on-line, from your desk, in your office” access to government information.

“Half our state government,” the Attorney General explained, “is still not on what you and I would call anything approaching modern databases.”

As a consequence, he said, Virginia citizens “can’t plug into the databases and make available that information on the web, because -- I jokingly say -- they’re still using punch cards.”

Joking aside, he said, about half of state agencies are actually “just above that level. I’m sure they’re not happy about it either.”

In the final excerpt from our lengthy interview, "Va. Att'y Gen'l Ken Cuccinelli endorses curbs on eminent domain in constitution," published on January 20, Cuccinelli noted his support for an amendment that will enshrine protections for private property owners in the Virginia Constitution. (The constitutional amendment has been patroned by both Delegate Rob Bell [R-Albemarle] and Delegate Johnny Joannou [D-Portsmouth], with a bipartisan list of copatrons.)

The Virginia Attorney General addressed how the Bell-Joannou amendment -- which has to pass two sessions of the General Assembly with an intervening election before being put to the voters as a referendum for their approval -- strengthens protections against eminent domain abuse:

Cuccinelli went on to explain that he and his colleagues have “been working for months on good language that will address four different issues.”

The first issue is “proper damages to people whose property is taken.”

The second is “requiring the government entities taking property to prove that it’s going to be put to a public use.”

The third is limiting those entities “to take no more than is absolutely necessary for the achievement of the public use.”

The fourth issue is “not treating such things that we typically refer to as the ‘Kelo elements’” – such as “economic development, increasing tax base, those kinds of things" -- as rationale for a taking.

The proposed amendments, Cuccinelli said, “eliminate those constitutionally as possibilities for legitimate – by ‘legitimate.’ I mean legally allowable by a court – explanations for a taking for a public use."

Speaking of eminent domain abuse, I spoke to two members of the General Assembly about that issue: my own representative, Delegate David Toscano (D-57), and state Senator Mark Obenshain (R-Harrisonburg). Obenshain has his own proposal for a constitutional amendment, and Toscano opposes putting these protections in the constitution.

In "Delegate David Toscano discusses transparency and eminent domain reform," also published on January 20, the former Charlottesville mayor argues against putting too many things in the Commonwealth's constitution:

“We did a lot on eminent domain three or four years ago,” he said, when a bill “that ultimately I didn’t feel all that good about” was approved. Despite his own misgivings, he added, “it’s what the legislature wanted and so it got passed.”

This year, he noted, “we hear renewed efforts to make it a constitutional amendment. I’m very leery about that. I’m not going to support it.”

Not just the eminent domain proposals, he said, “I’m very leery about amending the constitution, anyway.”

In the same interview, Toscano spoke about his own efforts to improve government transparency through two bills that he has introduced.

For his part, Senator Obenshain -- whom I interviewed last year on the topic of ABC privatization -- talked about his strong support for including property rights in the Virginia Constitution.

In "State Senator Mark Obenshain discusses property rights and eminent domain reform," published on January 17 (the same day that I met with the senator with a delegation of Republican Liberty Caucus members), he argues for the inclusion:

Senator Obenshain went on the record with the Charlottesville Libertarian Examiner and spelled out what his constitutional amendment would do.

The resolution “basically codifies the statutory language that we adopted two years ago” in reaction to the U.S. Supreme Court’s ruling in Kelo v. City of New London (2005). “It prevents the economic development/employment-type of eminent domain exercises that have been subject to abuse across the commonwealth of Virginia. It gives us the opportunity to memorialize that [language] in the Constitution so that it can’t just be undermined by efforts of the General Assembly in years to come.”

Finally, I should note that last Monday I spoke to the criminal law subcommittee of the House Courts of Justice Committee in favor of HB 1443, Delegate Harvey Morgan's bill to decriminalize simple possession of marijuana. Nobody spoke against the bill but the subcommittee, chaired by Delegate Rob Bell, killed it on a voice vote without raising an argument one way or the other.

After the vote, I spoke with Delegate Morgan, an elfin octogenarian, conservative Republican, and retired pharmacist who last year endured ridicule over his marijuana-reform proposals, yet persevered this year. He told me, in "Disappointment as Va. House subcommittee votes to keep pot possession a crime," also published on January 17 (which happened to be Martin Luther King, Jr., Day, a federal and state holiday):

“The bill I introduced,” Morgan explained, “would have made the simple possession of marijuana [subject to] a civil penalty and not a criminal penalty.”

Saying he was not advocating marijuana usage “at all,” Morgan went on to say ruefully that today, if a person is arrested – “even if it’s set aside” under the first offender law in Virginia -- the arrest and conviction are “always on your record as an arrest for a drug offense.”

As a result, he said, “anyone who has that on a record finds that it is an absolute barrier to employment for a commercial driver’s license, to work in a health care profession, to be a teacher.” In many jobs that require security clearances, he added, “they do a background check and up pops a drug offense and they just cannot hire you.”

Weather permitting -- forecasters indicate there may be a big storm coming up the East Coast on Tuesday and Wednesday -- I will be in Richmond next week, with opportunities to speak to other legislators. Stay tuned.

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Virginia Attorney General Issues Opinion on Health Care Legislation

At the request of Lieutenant Governor Bill Bolling, Virginia Attorney General William Mims has issued a two-page opinion on the constitutionality of the health care legislation (HR 3590) currently under consideration by the U.S. Congress.

The substantive text of his opinion letter follows (footnotes omitted):

I write in response to your recent letter concerning the “Patient Protection and Affordable Care Act,” pending in the Congress of the United States. You inquire about the constitutional validity of two provisions. One provision would, after a period of several years, exempt Nebraska in perpetuity from increased costs associated with the expansion of Medicaid. No other state, including Virginia, is afforded similar treatment. The other provision would require every citizen of the United States to obtain health insurance or face significant penalties. I share your concerns about the constitutionality of both provisions.

The Constitution creates a Federal Government of enumerated powers. See U.S. Const. Art. I, § 8. As James Madison wrote: “[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite.” The Federalist No. 45, pp. 292-93 (C. Rossiter ed. 1961); see also U.S. Const. amends. IX-X. This constitutionally mandated division of authority “was adopted by the Framers to ensure protection of our fundamental liberties.” Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) (internal quotation marks omitted). “Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the states and the federal government will reduce the risk of tyranny and abuse from either front.” Id Therefore, to justify federal legislation, a source of authority must be located in the Constitution. Equally important, legislation may not infringe on rights provided by the Constitution. With those considerations in mind, I address your specific concerns below.

I. Mandatory purchase of insurance

Among the powers accorded to Congress is the power “to regulate Commerce ... among the several States.” U.S. Const. Art. I, § 8, cl. 3. Following the enactment of President Roosevelt’s New Deal program, the Supreme Court of the United States “ushered in an era of Commerce Clause jurisprudence that greatly expanded the previously defined authority of Congress under that Clause.” United States v. Lopez, 514 U S 549, 556 (1995) The Court has concluded that Congress’ authority s not limited to “the regulation of commerce among the states,” Ed. at 555, but further allows Congress to regulate activities that “affect interstate commerce.” Id. The Commerce Clause power is broad, but it is not without limits. In Lopez, 514 U.S. 549, the Supreme Court struck down as unconstitutional the Gun-Free School Zones Act of 1990. See also United States v. Morrison, 529 U.S. 598 (2000) (invalidating Violence Against Women Act of 1994). Although health care is an economic activity, the failure to purchase health insurance is not an economic activity. The insurance mandate is open to constitutional challenge — although it is not clear that such a challenge would succeed, given the breadth of the Supreme Court’s interpretation of the Commerce power.

II. The “Nebraska exception”

You inquire whether the Equal Protection Clause of the Fourteenth Amendment would provide a basis for challenging the Nebraska Exception. The Equal Protection Clause, by its plain terms, applies only to the states, not to the United States. U.S. Const. amend. X1V § 14. Therefore, a state could not bring a viable equal protection challenge to the Nebraska exception currently found in the pending legislation.

The Nebraska exception is vulnerable, however, on other constitutional grounds. The Constitution provides Congress with the power to collect taxes and to spend money for the “general Welfare of the United States.” U.S. Const. Art. I § 8, cl. 1. Once again, the Supreme Court has given Congress very broad latitude in the exercise of this power. See South Dakota v. Dole, 483 U.S. 203 (1987). Nevertheless, that latitude “is of course not unlimited.” Id. at 207. One of those limits is that Congress must, as the Constitutional text unambiguously commands, spend in pursuit of the “general welfare.” Id. In my view, carving out an exception for a specific state, unrelated to any policy objective other than to secure the vote of a particular senator, would exceed the bounds of what Congress may do under the Spending Clause. Where the taxing and spending is intended to effectuate a benefit for a single state, solely to gamer the vote of a particular senator from that state rather than for the general welfare, the spending at issue is unconstitutional. To conclude otherwise, would mean that the General Welfare Clause is meaningless.

This will not be the final word on this subject.  I expect other states will also be weighing in on the constitutionality of Obamacare.



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Bloggers' Day at the Virginia State Capitol

On April 8, I participated in the third annual Bloggers' Day at the State Capitol, at the invitation of Lieutenant Governor Bill Bolling.

A few of the other participants (there were between 15 and 20 of us there on Wednesday, with numbers fluctuating through the course of the day as some had to attend to other business) have already posted their reflections on Bloggers' Day: Bearing Drift; Virginia Conservative (with pictures); and a brief mention on Tertium Quids.

What follows is an adaptation of an article I prepared for The Metro Herald in Alexandria. (Since some of that article will refer to this blogpost, it made sense to edit out various redundancies.)

(RICHMOND, April 8, 2009) --- Political bloggers from across Virginia were invited to the state Capitol on April 8 for a series of briefings by elected officials, candidates, campaign consultants, and pundits. “Bloggers’ Day at the State Capitol” coincided with the annual veto session of the General Assembly, at which the House of Delegates and State Senate accept or reject the amendments to bills made by the Governor and consider whether to override the Governor’s vetoes of other bills.

The sponsor of the day’s activities was Lieutenant Governor Bill Bolling, who is also a candidate for re-election this year. Bolling faces token opposition for the Republican nomination from Patrick Muldoon, an attorney from Giles County. The Lieutenant Governor estimated that 20 or 22 bloggers would participate in the day’s events; the actual number fluctuated during the course of the day from about 15 to about 20.

Bolling greeted the group of bloggers at his office in Richmond, and began the day’s discussions by giving an overview of the forthcoming statewide political campaign.

He started with a note of optimism: “We feel good about where we are,” Bolling said. “We’re usually fighting while the other side is united. This time we’re united while the other side is fighting.”

Bolling was referring to the fact that Republicans have already chosen their candidate for governor – former Attorney General Bob McDonnell, who faces no opponent in the GOP convention on May 30 – while the Democrats will be choosing their candidate in a primary on June 9 from a three-man field of state Senator Creigh Deeds of Bath County, former Delegate Brian Moran of Alexandria, and former Democratic National Committee chair Terry McAuliffe of McLean.

The only actively contested race for nomination to statewide office in the Republican Party is that of attorney general, which also features three candidates: former U.S. Attorney John Brownlee of Roanoke, state Senator Ken Cuccinelli of Fairfax County, and former Arlington County School Board chair David Foster. There is only one candidate for the Democratic nomination for Attorney General, Delegate Steve Shannon of Fairfax County. (All four are lawyers.)

Democrats also have a contested race for lieutenant governor, with three candidates seeking the nomination: Jon Bowerbank, a Russell County supervisor; Mike Signer of Arlington, a former advisor to then-Governor Mark Warner; and former state Secretary of Finance Jody Wagner of Virginia Beach. A fourth candidate, Virginia Beach school board member Pat Edmonson, failed to gather a sufficient number of petition signatures to qualify the June 9 primary ballot.

Bolling said the “conventional wisdom is my opponent will be Jody Wagner, who helped Tim Kaine botch up the state budget.”

The budget, he said, is one of many issues that favor Republicans in this fall’s elections.

“The issues are lining up our way,” Bolling said. “I don’t want to be overly dramatic about this, but if we win [in 2009], we’ll be well positioned for 2011 and 2012.” The entire General Assembly, both the House and the Senate, are up for election in 2011, and 2012 is a presidential election year as well as the year the junior U.S. senator from Virginia will face re-election.

“Conversely,” Bolling continued, “if we lose, it will be a decade or more before we elect another Republican statewide. Virginia will be blue.”

Bolling brought up what he called an “interesting” statistic borne out by recent polls. Among Virginia registered voters, 38 percent consider themselves Democrats; 33 percent consider themselves Republicans; and 29 percent are independents.

What Republicans have to do to win this year, Bolling said, is “we have got to reach the 29 percent. We have got to motivate the 33 percent.”

In reference to the recent decision of the Republican Party of Virginia to fire party chairman Jeff Frederick, Bolling said: “I stayed out of that [situation]. We have to turn the page and move on.” He added that he hopes “the State Central Committee will find someone who is a unifying voice.”

The Republican State Central Committee meets on May 2 to choose an interim chair; a permanent chair will be elected by the state party convention at the Richmond Coliseum on May 30. Between 8,000 and 10,000 delegates are expected to attend that convention, contrasted with about 4,000 who attended the convention last year that chose Frederick as chairman.

Bolling noted that “we can handle disagreements within the party but we cannot handle divisions within the party. To win elections we have to build consensus and build coalitions.”

Concluding his remarks as gubernatorial candidate Bob McDonnell joined the discussion, Bolling said: “This is not the time to be discouraged. It’s OK to be disappointed; it’s not OK to be discouraged.”

For his part, McDonnell greeted the gathering of bloggers by saying “it’s helpful to navigate our way around the mainstream media,” or MSM. He noted that, in the past, he had spoken to blogging conferences in his role as Attorney General. On those occasions he talked about the rules – rules about libel and slander, for instance, and the line that might be crossed in terms of campaign finance laws.

Having just launched his campaign for governor with a tour of 27 cities and counties over eight days, McDonnell declared that “Virginia is a competitive state. It is certainly not a blue state.”

McDonnell admitted that there are independents “who have left [the Republican party] because they don’t feel we’ve been addressing quality of life issues… We want them back.”

As well as engaging with bloggers, McDonnell said, “we’re using Twitter, MySpace Facebook, text messaging,” and other online tools for reaching voters and volunteers. He said his campaign has hired the firm that did text messaging for the Obama presidential campaign as part of this outreach effort.

McDonnell noted the concerns he is hearing from voters as he traveled across the state. He said he had discerned “great unrest in increasing numbers [of people] about whether a great increase in government spending” is the right way to address the economic crisis. “Is that really the answer?,” he asked.

He admitted that Republicans over the past eight years of the Bush administration had increased discretionary spending, so that the GOP does not have clean hands when it criticizes the new Obama administration.

McDonnell noted that voters have “great concerns about federalizing health care” and “great concerns about the federal government intruding into private corporations.”

In response to these concerns, McDonnell said “we need a rebirth of federalism. The Tenth Amendment has been trampled, undermining what makes America great.”

McDonnell acknowledged that his campaign faces “a difficult dynamic of more government spending and more government solutions.” He asserted that his campaign will be talking “about big ideas to fix the economy.”

“I want Virginia to be the best place in America to start a small business,” the candidate said. “We need to cut red tape.” In addition, McDonnell said, Virginia should be the best state for film production and tourism (sectors of the economy that have also been singled out by McDonnell’s potential opponent, Terry McAuliffe).

Opening up the floor for questions, McDonnell was asked about the leadership crisis in the Republican Party of Virginia. He replied that “grassroots leaders of the party should decide who the chairman should be.” The best person for that job, he said, is someone who is a “solid conservative with management experience.” He added that he and his campaign “want a good, strong working relationship with the party.”

Another question was raised about a controversial issue that would be taken up by the General Assembly that day: whether to accept federal stimulus money that would extend unemployment compensation programs. (In the end, the General Assembly rejected the Governor’s amendments that authorized acceptance of the federal funds, but this action was in the future during the bloggers’ discussion with McDonnell and Bolling.)

McDonnell answered that he was against accepting the federal stimulus money for this program because it would bring with it an “unfunded mandate” that required a change in Virginia law. “In the long term,” McDonnell said, this program would “hurt the effort to expand jobs and stimulate the economy.”

Lieutenant Governor Bolling added that this program would have a “tremendous [negative] impact on the cost of doing business,” that would lead to more businesses laying off employees in order to absorb the costs imposed on them by the government. This would lead, he said, to a “vicious, endless cycle that ends up with more people being unemployed.”

After a few questions about issues that might be discussed on the floors of the House and Senate during the veto session, Bolling and McDonnell left for other meetings.

The bloggers in attendance sat in the gallery of the state Senate, where they were welcomed by the 40 members of that legislative chamber, after being introduced from the floor by Senator Ken Cuccinelli, who called the bloggers “a distinguished group of rabble rousers.”

Here is the video record of the welcome by the state Senate, which includes the invocation by the Reverend James Porter and remarks by Senators John Watkins and Donald McEachin; the welcoming remarks by Senator Cuccinelli begin at minute marker 3:01:

Throughout the rest of the day the bloggers were briefed by political consultant Chris LaCivita of Advancing Strategies, LLC; Ford O’Connell and Steve Pearson of Project Virginia, a new social networking platform for civic engagement; former VCU political science professor Bob Holsworth, now with Virginia Tomorrow; Delegate Chris Saxman (R-Staunton), and Paul Haughton, executive director of the House Republican Campaign Committee.

Here, in five segments, is Dr. Bob Holsworth's assessment of the state of Virginia politics; he answers questions from the bloggers in parts 4 and 5:

Part I:



Part II:



Part III:



Part IV:



Part V, in which I ask a question about the Fifth Congressional District, Congressman Tom Perriello, and former Congressman Virgil Goode:

Dr. Holsworth was followed by Delegate Chris Saxman, who gave the right answer when I asked him about the Virginia government's new prohibition on smoking in restaurants. Let's go to the tape:

This was the third annual “Bloggers’ Day at the State Capitol” and participants expect that there will be more in the future.

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Brownlee vs. Cuccinelli

Various news sources are predicting that, tomorrow, former U.S. Attorney John Brownlee will announce his plans to run for Virginia Attorney General in 2009, setting up a contest with state Senator Ken Cuccinelli of Fairfax County.

Brownlee sent out a press release regarding a news conference at which he will reveal his intentions. The biggest clue that he will, in fact, be running is that the news release was printed on "Brownlee for Attorney General" letterhead.

Just for fun, here is a preference poll for this race:

Whom do you support for the Republican nomination for Virginia Attorney General? 1) John Brownlee 2) Ken Cuccinelli View Results Make your own poll

You might see versions of this poll on other blogs belonging to The Jeffersoniad, a collective of Virginia bloggers.

What Will Cuccinelli Announce?

Last weekend, as reported here through video, state Senator Ken Cuccinelli (R-37) told members of the Republican Liberty Caucus that he is leaning toward running for Attorney General in 2009. (Given other developments this week, he would -- should he win the nomination -- be the third man on a McDonnell-Bolling-Cuccinelli ticket.)

Now comes a news release from Cuccinelli's office, alerting the press and public to a "key announcement" to be made on Monday afternoon:

CUCCINELLI SCHEDULES KEY ANNOUNCEMENT

Fairfax, Virginia, March 28, 2008 – Virginia State Senator Ken Cuccinelli (R-37th) today scheduled a press conference for Monday, March 31st at 12:30 pm. The press conference will occur in front of the Fairfax County Government Center, 12000 Government Center Parkway; Fairfax, Virginia 22035.

Cuccinelli will address his intentions regarding the 2009 race for the Republican nomination for Virginia Attorney General: “Having had some time at home after the General Assembly session, my wife and I have made some decisions about this race that are now final enough to share.”

Cuccinelli, a partner in the law firm of Cuccinelli & Day, PLLC, was first elected to the Senate of Virginia in a 2002 special election. He serves on the Senate Courts of Justice Committee and has worked closely with the Attorney General’s office on key public safety and public interest legislation.

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If Cuccinelli does go ahead and make the run for Attorney General, he'll be entering a crowded field. As I mentioned previously, former Arlington County School Board member Dave Foster has expressed interest, as has Gil Davis, a Northern Virginia attorney who sought the nomination in 1997, the year that Jerry Kilgore won. So has Delegate Rob Bell (R-58) and, apparently, Bell's predecessor, former Delegate Paul Harris, according to Daily Progress political writer Bob Gibson. Gibson also mentions state Senator Mark Obenshain (R-26) of Harrisonburg as a possibility. In his remarks to the RLC, Cuccinelli noted that Obenshain is an ally of his in the Virginia Senate.

The Democratic side may not be as crowded. A Washington Post article from late January suggests Delegate Steve Shannon (D-35) and state Finance Secretary Jody Wagner may throw their hats into the ring. There had been some talk earlier on about Delegate Brian Moran (D-46), the leader of the House Democratic caucus, running for the AG post, but he seems firmly intent on running for his party's gubernatorial nomination against state Senator Creigh Deeds (D-25), who came within a hair's breadth of winning the Attorney General's race in 2005.

As a transplant to Virginia myself, I feel safe in asking, in Moran's case, whether Virginia voters are willing to elect a third non-native candidate in a row to the governor's office. And not just any outlander, but the second New Englander since 2001. One would hope that issues and character are the main criteria for a choice but really -- after the reaction Jerry Kilgore's voice got in 2005, is it possible that Moran's Boston accent will play well in Southwest and Southside Virginia?