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Progressive Voice: The Power of the Veto Pen

by Larry Roberts March 31, 2016 at 12:30 pm 0

Larry RobertsProgressive Voice is a weekly opinion column. The views and opinions expressed in the column are those of the individual authors and do not necessarily reflect the views of their organizations or ARLnow.com.

When following issue discussions in Arlington, it seems that most people understand that federal law is the supreme law of the land and that County actions cannot contravene federal laws pursuant to the “supremacy clause” of the U.S. Constitution.

However, it is not as well known how Arlington’s actions are constrained by state law.

Most states have adopted “home rule” provisions that permit local governments to act in any way that is not specifically precluded by state laws.

By contrast, Virginia adheres closely to the “Dillon Rule” set forth by an Iowa Supreme Court Justice in the 1860s.

The Dillon Rule essentially holds that states hold all governmental power not conferred to the federal government by the U.S. Constitution and that local governments have NO power to act unless given that power by the state.

Virginia courts have concluded that local governments in Virginia have only the powers that are specifically conferred on them by the Virginia General Assembly; those powers that are implied from a specific grant of authority; and those powers that are indispensable to the purposes of government.

Early in the 21st century, the Virginia Supreme Court invoked the Dillon Rule to invalidate Arlington County’s attempt to expand employee health insurance benefits to domestic partners who were then prohibited from marrying under the state constitution.

Why does any of this matter?

Because the General Assembly in Richmond recently concluded a session in which it passed a number of bills that would either set state authority or restrict local self-governance in ways that many Arlingtonians would consider inconsistent with their values.

The only reason these bills are not likely to become law is because Governor McAuliffe has vetoed them and there are not enough General Assembly votes to override those vetoes.

Here are some of the measures that would have become law but for the Governor’s veto (as those bills were described by the Governor):

1) SB41 would shield from civil liability those who actively discriminate against same-sex couples;

2) HB1090 would harm tens of thousands of Virginians who rely on the health care services and programs provided by Planned Parenthood health centers by denying them access to affordable care;

3) HB1371 would prohibit Virginia localities from making their own decisions to improve wage and benefit conditions;

4) HB264 would prohibit local governments from adopting a wage floor for contractors that is higher than state or federal requirements;

5) HB1096 and HB382 would make Virginians less safe by eliminating common sense restrictions on the possession of firearms in or around state office buildings;

6) HB9 would require local registrars to deny voter registration applications submitted by eligible Virginians with non-material omissions;

7) HB298 and SB44 would extend costly and ineffective coal tax credits, while SB 21 would bar Virginia’s Department of Environmental Quality from submitting a plan to comply with the EPA’s Clean Power Plan; and

8) HB587 would override the authority of local governments in order to prevent them from deciding whether to remove or alter symbols of the Confederacy.

Most Arlington residents would agree with the Governor’s vetoes. As evidence, in the 2013 gubernatorial election Terry McAuliffe received 76.4% of the two party vote in Arlington – over 33,000 more votes than his opponent Ken Cuccinelli.

Yet Governor McAuliffe’s statewide margin over his opponent was only 56,435 – winning 51.4% of the two party vote compared to Cuccinelli’s 48.6%.

Stated another way, a switch of only 28,218 votes (out of nearly 2.1 million) from McAuliffe to Cuccinelli in 2013 would almost certainly have resulted in all of the bills described above becoming state law.

The power of the veto pen is on display this year. But for Arlingtonians who agree with the Governor, the need to be cognizant of and engaged in state politics, elections, and governing should be apparent.

Larry Roberts is a 30-year resident of Arlington and an attorney in private practice. He chaired two successful statewide campaigns and is a former Chair of the Arlington County Democratic Committee.

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