Thursday, August 26, 2010

Who died and left Ken Cuccinelli king?

We are apparently living during the reign of King Ken I.

Virginia Attorney General Ken Cuccinelli, aided and abetted by his liegeman Del. Bob Marshall (R-Manassas), has apparently hatched a plan to rule Virginia via attorney general's opinion.

That has the advantage of not only circumventing those troublesome varlets in the General Assembly but the increasingly irrelevant Gov. Bob McDonnell, who probably mistook last year's election results as putting him in charge of state government.

Shows how little he knows.

The Cuccinelli/Marshall's coalition's latest power grab is an attorney general's opinion, requested by Marshall of course, that opines that the state already has the power to regulate abortion clinics in the same way it regulates hospitals and out-patient surgery centers. Current state law applies to facilities that perform second and third-trimester abortions, but not to facilities that perform only first-trimester abortions. Cuccinelli says the state already has that power.

That's interesting. Marshall certainly didn't think the state had that power when he repeatedly introduced legislation that would have given the state such authority. That legislation was defeated in the General Assembly.

I guess that's why Marshall and Cuccinelli, also an ardent abortion foe, would prefer to rule the state by edict. So much more efficient than that messy democracy stuff.

In Virginia, an attorney general's opinion, which can only be requested by an eligible party such as a state legislator or local elected government, is treated as the state of the law until a court rules otherwise.

However, Marshall and Cuccinelli may have made an oversight in their latest attempt to circumvent the democratic process. While the attorney general can issue his opinion, he can't force the Department of Health Professions to promulgate regulations for abortion providers. The department doesn't work for him. Cuccinelli and Marshall are Republicans who embrace a philosophy that hates government. I guess they can't be expected to know how it works.

The department  does work for McDonnell, whose spokesman indicated the governor -- who's political career began on the anti-abortion right -- is sympathetic to the need to regulate the clinics.

It's unclear if McDonnell can direct the department to draft regulations, absent specific legislation from the General Assembly.

I guess we'll find out when the issue gets to court.

Cuccinelli, quicly proving to be the state's most litigious attorney general ever, is already involved in court cases against the federal government and the University of Virginia.

There will likely be more to follow if Virginians aren't content to allow the newly self-appointed two-man junta to run the commonwealth.

Cuccinelli's latest opinion is very similar to his opinion that Virginia law enforcement officers already  have the authority to implement a "driving-while-brown" policy similar to the controversial law that Arizona recently passed where they can check the immigration status of not only everyone arrested, but everyone stopped  by a police office. Welcome to Virginia, show us your papers.

Cuccinelli doesn't think the state needs to go through the trouble of debate on the merits of the issue in the legislature. He can just assert that police already have the power and --hey, presto! -- they do.

That opinion was also requested by... Bob Marshall.

So was this week's other newsworthy attorney general opinion, that local governments can put up holiday displays, including religious iconography. In this case, the a.g. isn't usurping the authority of the legislature and the governor, but of the courts. The conflict between the First Amendement's admonition establishment of religion and its free exercise of religion clause have been an ongoing theme in American history for at least 50 years, and the subject of innumerable court opinions, some falling in each direction. Apparently we could have saved a lot of time and legal fees by just asking Cuccinelli.

Localities that don't want to find themselves embroiled in a lawsuit should be careful about applying King Ken's new decree.

Marshall also asked for the opinion, the first sign that Cuccinelli was not going to be your garden-variety attorney general, that led Cuccinelli to rule that state colleges could not adopt personnel policies that did not discriminate against gay employees. Even McDonnell felt compelled to undercut the a.g. on that, issuing non-discrimination guidelines for state agencies.

And Marshall was the sponsor of the law that unearthed the 19th-century doctine of nullification, stating that Virginia residents could not be forced to buy health insurance as required by the federal health care reform legislation. The existence of that statute gave Cuccinelli the legal pretext on which to challenge the federal law. That case is still pending in the federal courts. Were they, at this late date, to rule that states have the right to nullify acts of the federal government that would be a major change in American law.

It would also make Cuccinelli the darling of the Tea  Party crowd nationwide. While some think Cuccinelli is manuevering to beat Lt. Gov. Bill Bolling in a 2013 primary for the GOP gubernatorial nomination, success in halting the hated "Obamacare" might make the a.g. aim higher. He might start looking at a challenge to Jim Webb in 2012, although he'd apparently have to beat out former governor and senator George Allen for the nomination. It might also make him look attractive to those putting together the GOP national ticket in 2012, especially if a relative moderate like Mitt Romney were to capture the GOP nomination.

Marshall's motivations, although he tried for the GOP nomination for Senate in 2008, are likely less ambitious than ideological. He's sincere in wanting to criminalize abortion, discriminate against gays and immigrants, and knock a hole in Thomas Jefferson's "wall between church and state." It's a 10th-century agenda, but he pursues it with a tireless zeal and a good deal of cleverness.

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