On a mostly party-line vote on Monday, the House of Delegates passed HB 706, a bill that would give legal standing for any member of the General Assembly to defend a law that the attorney general has deemed unconstitutional.
It’s hard to imagine the Senate also passing the bill, and even if it did, then Gov. Terry McAuliffe somehow signing it into law. The bill exists solely in the context of the move last month by attorney general Mark Herring to announce that he will not defend the 2006 state constitutional amendment banning same-sex marriage.
“HB 706 strikes at the heart of our separation of powers, a principle which the founders considered essential for democracy,” said Democratic House Leader David Toscano. “Passage of this bill is designed more to score political points than it is about building good public policy. House Republicans didn’t advocate for this bill when Republican attorneys general declined to defend laws they determined were unconstitutional. The attorney general is elected to be the sole person empowered to present the state’s position in legal matters, and his authority should not be undermined by partisan considerations.”
“This bill is aimed at attorney general Herring because its proponents disagree with his view that Virginia’s laws against same-sex marriage are unconstitutional,” said Democratic Caucus Chair Mark Sickles. “We expect the Senate to reject this effort to undermine our citizens’ civil right to marry the person they love.”
“This bill raises some serious constitutional and separation of powers concerns,” said Delegate Jennifer McClellan. “It would create 140 mini-attorneys general in the General Assembly. Allowing each individual legislator to exercise executive powers violates the Virginia Constitution and raises practical concerns regarding authority to make decisions in a case on behalf of the Commonwealth.”