If the bill succeeds, it could set up a situation like the one in the U.S. House of Representatives, where Republicans hired a private attorney to defend the Defense of Marriage Act in court.
The attorney general’s office declined to comment directly on the legislation, but spokeswoman Ellen Qualls noted that “the constitution of Virginia provides for a duly elected attorney general to do this very job.”
Republicans said they are concerned about a few policies in particular: abortion clinic regulations, the constitutional ban on same-sex marriage and redistricting. On the campaign trail, Gov. Terry McAuliffe, then the Democratic gubernatorial candidate, promised to use administrative powers to make newly enacted clinic regulations less onerous, and Herring said he wasn’t sure he would defend those regulations. The new attorney general also declined to say before taking office whether he would defend the marriage ban in court. Two challenges to the constitutionality of the marriage amendment are currently underway.
In addition, during the recount in the race for attorney general last December, Democrats said privately that a Herring win was crucial to McAuliffe to give him legal cover to use executive power in the face of a Republican General Assembly.
“[T]he attorney general’s job is like a judge. A judge will tell you, ‘Look, I might not agree with the law, but my job is basically not to make law. It is to look at what the law was [and what] the legislature intended,’ ” House Majority Leader M. Kirkland Cox (R-Colonial Heights) said. “And I’m a bit disturbed by some of the things that have come out, whether Mark Herring will actually do that or not. So I think it’s certainly something worth exploring.” Republican House Speaker William J. Howell (R-Stafford) expressed similar sentiments soon after Herring’s election.
Democrats were more skeptical.
“If someone doesn’t like the fact that the attorney general is defending or not defending the law, the solution is an election,” Del. Scott A. Surovell (D-Fairfax) said. Individual lawmakers could hire a lawyer if they want, he said, but taxpayers shouldn’t pay for it.
Gilbert argued that the legislation is not partisan because it could benefit Democrats in a future administration. “It doesn’t give any particular party any advantage,” he said.
And even if the bill fails or McAuliffe vetoes it, Gilbert said the House might already have standing to defend laws on the books. “It’s not crystal clear,” he said.
Should Herring decline to defend a law, he can point to recent precedent. As attorney general, Ken Cuccinelli II (R) refused to defend one of then-Gov. Robert F. McDonnell’s education reforms in court, saying he believed the legislation, allowing the state to take over failing schools, is unconstitutional.
Herring has already dismissed private lawyers who charged Virginia taxpayers about $785,000 to represent McDonnell and his staff in an ongoing gifts scandal.