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The Right Note: Making It Up As They Go Along

The Right Note is a weekly opinion column. The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of

Mark KellyOne thing we seem to agree on as Americans these days, we are wary of the actions elected officials are taking.

When the president said he would ignore Congress and take action via “phone and pen,” he did little to bolster our faith in our elected officials to follow the rules. It certainly did not boost his job approval rating either. In national polls, Americans are consistently giving President Obama marks in the low 40s.

Here in Virginia, we are starting to see a similar approach to governing.

On the Virginia Attorney General’s website, it clearly states that it is Attorney General Mark Herring’s job to defend the constitutionality of state laws when they are challenged in court. And, he swore an oath of office to defend the Constitution of Virginia.

Since taking office in January, however, General Herring has twice decided to ignore his sworn duty and not defend or enforce Virginia law. Herring’s actions on the marriage provision in our Virginia Constitution or the law prohibiting in-state tuition for undocumented immigrants should give us all pause. Ends justifying the means is a dangerous precedent when the next Attorney General may have different priorities.

At the same time, rumors are swirling that if Gov. Terry McAuliffe does not get his way on Medicaid expansion in the budget fight, that he will try to implement it through his executive powers. A stroke of the pen, and he could simply ignore the legislative branch some speculate.

Herring, based on his track record to date, would almost certainly back McAuliffe’s play were the governor to make it. McAuliffe and Herring would presumably then dare the legislature to try and overturn an executive order. Let’s hope, however, that the rumored executive order route is merely conjecture, or a tactic to try and get Republicans to the negotiating table on Medicaid.

The election of the Attorney General or Governor cannot overturn the results of all other elections. We elect a legislature to pass laws. We have a state constitution and a process for the voters to amend it. Lawmaking by “phone and pen” is wrong in Washington, and it is wrong for Virginia.

Mark Kelly is a former Arlington GOP Chairman and two-time Republican candidate for Arlington County Board.

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