Washington, D.C., isn't the only place where the separation of powers and constitutional forms are under attack. In Virginia, Governor Terry McAuliffe was rebuked by his state's Supreme Court on Friday for his attempt to circumvent the language of the Virginia Constitution—and the will of the General Assembly—by unilaterally decreeing voting rights for some 200,000 released felons. (President Obama defeated Mitt Romney by less than 150,000 votes in Virginia in 2012.) Now, after the state's high court ruled that McAuliffe has no power to issue an order that effectively changes the Virginia Constitution, McAuliffe has defiantly responded by suggesting he'll get around the court's verdict by issuing 200,000 orders.
Under the Virginia Constitution, released felons generally cannot vote in the state. Upon McAuliffe's unilateral effort to undo that prohibition in widespread fashion, the court wrote the following:
"Never before have any of the prior 71 Virginia Governors issued a clemency order of any kind—including pardons, reprieves, commutations, and restoration orders—to a class of unnamed felons without regard for the nature of the crimes or any other individual circumstances relevant to the request."
In response, McAuliffe will instead issue 200,000 separate orders without regard for the nature of the crimes or any other individual circumstances relevant to the request.
The court continued, "To be sure, no Governor of this Commonwealth, until now, has even suggested that such a power exists." Prior Virginia governors include Thomas Jefferson, Patrick Henry, Edmund Randolph, and James Monroe. Maybe they just weren't as clever as McAuliffe. Or maybe they believed in the separation of powers and the rule of law.
McAuliffe has indicated that he will use "my executive pen" to circumvent the Virginia Constitution, the will of the General Assembly, and the ruling of the Virginia Supreme Court. He condescendingly added, "I remain committed to moving past our Commonwealth's history of injustice." It's enough to make any Virginian proud.
Under its section entitled, "Executive clemency," the Virginia Constitution reads, "He [the governor] shall communicate to the General Assembly, at each regular session, particulars of every case of fine or penalty remitted, of reprieve or pardon granted, and of punishment commuted, with his reasons for remitting, granting, or commuting the same." In other words, McAuliffe's gross abuse of the clemency power could keep him busy for some time if the General Assembly holds him to this requirement.
But it remains to be seen how the Virginia General Assembly, or Republican presidential candidate Donald Trump, will respond to McAuliffe's lawless power grab.
Jeffrey H. Anderson, author of "An Alternative to Obamacare," is a Hudson Institute senior fellow.
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