Attorney General Mark Herring

Will Session End On Time?

When the House of Delegates and Senate passed their respective budgets several days ago, the most glaring difference between the two, as anticipated, was the two chambers' approaches to Medicaid expansion. To wit, Obamacare in Virginia. The Senate included expanding Obamacare in its budget despite agreement last year with the House that the issue would be kept separate from the budget so it wouldn't become a stumbling block to passing a future budget. The agreement consisted of the creation of the Medicaid Innovation and Reform Commission, which has the authority to make recommendations to the General Assembly concerning expansion. Its charter is to formulate necessary reforms for the abuse- and fraud-ridden program that state and federal governments must accept before Medicaid expansion gets anywhere near a floor vote for approval.

MIRC has yet, after almost a year's work, to draft its recommendations for reform. Instead, it continued its efforts for another year. Despite last year's agreement and MIRC's continuation, three Senate Republicans — John WatkinsWalter Stosch and Emmett Hanger — joined all 20 Democrats to passing the Senate budget with Medicaid expansion in it. The Senate and Governor Terry McAuliffe want to backtrack on last year's arrangement and want Obamacare expanded immediately.

To emphasize its position, House Republicans offered a budget floor amendment, modeled after the Senate expansion plan. It promptly went down 67-32. House Republicans have maintained that it would be irresponsible to expand Obamacare because future costs would be so great that it could cripple the state budget.

They also argue that the program is wrought with inefficiency and fraud and have proposed a first-ever outside audit before any expansion can take place. By example, former Governor Tim Kaine refused a VDOT audit for his four years and closed rest stops and other unnecessary cuts. After he left office, the audit House Republicans sought finally took place and revealed more than $1 billion in waste. There's no telling how much waste an audit of Medicaid would uncover since it is much larger than VDOT — about 21 percent of Virginia's budget and growing fast.

Most insiders in Richmond believe that the battle over Obamacare expansion will leave the state without a budget well into spring, if not longer. A new budget must be adopted by June 30 or state government could theoretically "shut down" July 1. Governor McAuliffe has stated that he intends to veto any budget sent to him that does not include Obamcare expansion and willingly shut down state government in order to get his way — not this session's much referenced, bipartisan-and-honor-your-agreements buzz phrase, "Virginia Way." That means police and fire departments without funding, teachers without pay and roads unpaved, among other disruptions.

A few days after the House passed its budget, reports surfaced that that Governor McAuliffe threatened vetoes of legislators' unrelated bills if they didn't go along with expansion,  something his office quickly denied. But delegates took to the floor later to recount the governor's bullying tactics and threats.

The House and Senate remain in conference in an attempt to settle their budget differences. But if conferees cannot come up with a solution before March 8, the General Assembly will have to adjourn without a budget — an unprecedented scenario that is growing more likely by the hour during this last week of session. Also, should a budget not pass, or a budget pass without the continuation of the MIRC, some believe that the governor will unilaterally expand Obamacare. That action could result in litigation, leaving it up to Attorney General Mark Herring to choose sides on the issue.

If it all sounds like Washington style politics and not "The Virginia Way," you're right. It's what many predicted during the campaign if Governor McAuliffe was elected. Be prepared to watch this battle go on well into the spring, and beyond.

Virginia, and "The Virginia Way," isn't for shutdowns. But it may come to that. 

Support Defunding The Attorney General's Attack On Marriage!

Ever since Attorney General Mark Herring disenfranchised more than a million Virginia voters and turned his back on his oath to uphold Virginia's constitution, citizens across the commonwealth have been asking, "What can be done?" Every option is being explored, but tomorrow, the House of Delegates likely will try to hit Herring where it can — in his budget. Multiple budget amendments will be introduced tomorrow, when the House debates and amends its budget bill, by Delegates Bob Marshall (R-13, Manassas) and Todd Gilbert (R-15, Woodstock) that would prohibit the Office of Attorney General from using taxpayer dollars to challenge Virginia's Marriage Amendment.

Please click here to contact your Delegate and urge him or her to support any effort to defund Attorney General Herring's attack on the Virginia Constitution!

Regardless of one's position on the Marriage Amendment, the decision of Attorney General Herring to not only abandon the state constitution — and the voters — but actually attack it by joining in a case in to overturn one of its amendments, is both unprecedented and dangerous. It bases the defense of every law and constitutional amendment in Virginia on the whims of one individual.

So outrageous is the arrogance of the attorney general, that he has added a statement to his website proclaiming:

The Attorney General is the sole person empowered to present the Commonwealth's position in legal matters and it is up to him or her to determine that position through rigorous legal analysis.

Until Attorney General Herring took office, laws in the commonwealth were assumed to be constitutional until a court ruled otherwise. Now, this attorney general has placed himself above the law, the constitution, and above the courts as the final arbiter of what is constitutional.

The House of Delegates is fighting back. Tomorrow, it will vote on its budget. Please encourage your delegate to stand up for your vote and the rule of law, and adopt budget amendments that defund the attorney general's attack on the Virginia Constitution!

Please click here to contact your Delegate and urge him or her to support any effort to defund Attorney General Herring's attack on the Virginia Constitution!


Federal Judge Decision To Redefine Marriage In Virginia More Of Political Show Than Legal Decision

As we're sure that you are aware by now, a federal judge in Norfolk, assisted by our newly-elected Attorney General, has ruled that Virginia's Marriage Amendment, which defines marriage as the union of one man and one woman, is unconstitutional. This judge ignored the will of more than a million Virginia voters who ratified the Marriage Amendment by more than 57 percent in 2006, as well as ignoring the state's interest in protecting a timeless institution designed for the well-being of children. The timing of Judge Arenda Wright-Allen's decision, rushed for release last night just prior to Valentine's Day, reeks of political show, making her ruling less a legal argument and more a press release. It's disappointing that a federal judge would so blatantly expose her personal political agenda at the expense of not just marriage, but our entire social fabric.

The question is, what can you do to help?

Please consider writing a letter to the editor of your local paper. It is imperative that the voices of those who believe in natural marriage are heard above the din of talking heads and commentators who will revel in this judge's decision.

Our e-mail system allows you to write a letter online and then it will send it to the editor of your local paper with the click of a button. You don't need to look up e-mail addresses or editors' names . . . it couldn't be much easier.

We have included some talking points that you can use when crafting your letter below. For more background, here is a link to an op-ed TFF President Victoria Cobb wrote in last Sunday's Richmond Times-Dispatch. Please put these into your own words and send your letter off right away. It is too easy to think, "I will do it later" and never get around to it. Thank you for taking action and standing for marriage!

» One federal judge should not disenfranchise the votes of more than one million Virginians.

» The state's only primary interest in marriage has always been the well-being of children, not the love-lives of adults.

» Social science proves that children do best in a home with a mom and a dad.

» Judge Wright-Allen has politicized her decision by rushing it out the night before Valentine's Day.

» The decision by the judge on the issue of marriage is not based on any of the facts of the case, any of the evidence presented in hearings, or any of the truth surrounding the state's interest in marriage.

» This decision will open the door for polygamy and other forms of "marriage" which will continue to degrade the God-ordained institution of marriage.

» Freedom of religion and speech are already being threatened in states that have recognized same-sex "marriage."

» Attorney General Mark Herring took the unprecedented step of siding with the plaintiffs in this case against the Virginia Constitution he took an oath to uphold.

Taking A Stand

On Monday afternoon, the House of Delegates passed a bill by a vote of 65-32 that would give legislators "standing" in federal court to defend the laws of the Commonwealth not defended by the attorney general. The bill, HB 706, patroned by Delegate Todd Gilbert (R-15, Woodstock), was introduced well before the unprecedented decision by Attorney General Mark Herring to not only not defend Virginia's Marriage Amendment, but to join the case in opposition to the commonwealth. During floor debate, Democrats continued to misrepresent Attorney General Herring's actions, claiming that it is similar to that of former Attorneys General who did not defend a state law. But in those cases, as is customary in Virginia, the attorneys general in question appointed outside counsel to represent the state; otherwise, the governor appointed counsel. The Code of Virginia allows the attorney general to refuse to defend a law where there is a conflict of interest or economic considerations, and is not unusual.

What is unusual is an attorney general who refuses to defend the state constitution, refuses to appoint outside counsel and, further, joins the case in opposition to the constitution. That's unprecedented. Since Governor Terry McAuliffe refuses to act as well, Virginians are without statewide counsel. It's akin to a defense attorney refusing to defend his client and, instead, walks across the aisle and joins the prosecutor. It's dereliction of duty, purposefully negligent and unethical.

No Democrat during the debate, or anyone anywhere for that matter, has yet pointed to a case where this has ever happened. House Democrats refused even to acknowledge a difference between not defending a law and joining the plaintiff's lawsuit against the commonwealth.

Joining the Democrats in misrepresenting the actions of Attorney General Herring are most of Virginia's newspaper editorial boards. The lack of objective and clear reporting on the issue reveals not simply partisanship, but a pathological obsession with advancing the cause of same-sex marriage at any cost. Apparently, attacking Virginians as hateful bigots simply because they believe that marriage should be reserved for a man and a woman for the benefit of children isn't enough; secular liberals in office and on the editorial pages have to lie about anything related to the issue as well.

Luckily, some are standing up for the rule of law. A Washington Post op-ed from Colorado Attorney General John W. Suthers makes a compelling case for attorneys general defending laws they view as unjust because in their role as chief legal officer of states, they shouldn't have "litigation veto" over laws legally adopted.

Photo: Attorney General Herring, defend our laws!</p><br />
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Mark Herring: Upholds his hand, but not the Virginia Constitution.

Fate Of The Marriage Amendment To Be Determined "Soon"

The Family Foundation was joined yesterday morning in Norfolk by Concerned Women for America, FRC Action and hundreds of Christians from churches across Eastern Virginia as we stood up in support of marriage, the Virginia Constitution and in solidarity with the brave and principled attorneys from Alliance Defending Freedom. Alliance Defending Freedom was in court officially representing the Clerk of the Court of Prince William County, Michele McQuigg, a former member of the House of Delegates, who is seeking affirmation of the Marriage Amendment in her position, which is charged with issuing marriage licenses. Oral arguments for the challenge to the Marriage Amendment were heard with U.S. District Court Judge Arenda L. Wright Allen, who promised to make a timely ruling, and said, "You'll be hearing from me soon."

Lawyers for the plaintiffs asserted the amendment, passed by 57 percent of Virginia's voters, was unconstitutional, arguing marriage was a fundamental right and that the institution was not ultimately about children but was instead a symbol of freedom, comparing same-sex marriage to marriage allowed only among freed slaves. Attorney General Mark Herring attended the hearing to watch his solicitor general argue on behalf of the plaintiffs.

Alliance Defending Freedom attorneys argued the government's interest in marriage is in the upbringing of children by a mother and a father and that there exist no constitutional grounds or precedent to change the law to allow for homosexual unions. Its attorney skillfully outlined how marriage is the one and only relationship that is absolutely essential to the future of humanity. In yet another attempt of the liberal left to redefine beyond recognition an important term, plaintiffs actually stood before the judge and stated that "same-sex couples pro-create."

Outside the hearing, traditional marriage supporters held a rally as well as a news conference that included Family Foundation President Victoria Cobb, Josh Duggar from FRC Action, Alison Howard from Concerned Women for America, and Bishop E.W. Jackson of S.T.A.N.D. Supporters of natural marriage numbered in the hundreds, while only a dozen people supporting same-sex marriage protested outside.

Of course the media's coverage was predictably skewed. For a real representation of what happened, see the video and picture below. More photos from the rally can be seen on our Facebook page. Then, please follow this link and sign the petition asking Attorney General Mark Herring to do his job and defend the Virginia Constitution!

The real news.

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From left, Josh Duggar of FRC Action and a star of TLC's 19 Kids and Counting; The Family Foundation's Victoria Cobb; Alison Howard from Concerned Women for America; and Bishop E.W. Jackson of S.T.A.N.D. 

Sign The Petition: Attorney General Herring, Defend Our Laws!

Last Thursday, January 23rd, Attorney General Mark Herring, after less than two weeks in office, made an unprecedented announcement: Not only would he not defend the Virginia Marriage Amendment, but he would join the plaintiffs in suing the Commonwealth of Virginia. On top of that, he refused to appoint outside counsel, as he is allowed and budgeted to do in cases where he has a conflict or profound disagreement. It is an unprecedented move to fight against the law, and against your own citizens, on behalf of those who are suing the Commonwealth of Virginia. However, Attorney General Herring apparently is content to let his clients — the citizens of Virginia — be without a legal defense. This is unheard of in the legal profession and violates the Bar's code of professional conduct and ethics. It is akin to a defense lawyer telling a court at the beginning of a trial that he refuses to give his client the defense he deserves and has paid for, and will join the prosecution.

In response to Attorney General Mark Herring's subversion of the will of 57 percent of Virginians who voted to add the Marriage Amendment to the Virginia Constitution, we are asking citizens of Virginia to join us as we petition the Attorney General to honor the Rule of Law. It is imperative we, as citizens of the Commonwealth of Virginia, express our concern for Attorney General Herring's neglect of duty and disregard for the law. We cannot allow our elected officials to bow to the will of special interests and cherry-pick the Constitution of Virginia.

Please click here and sign the petition, then encourage your family and friends to do the same.


Defend Your Vote: Contact Attorney General Mark Herring!

In an unprecedented decision with long-reaching consequences for the rule of law, and within days of swearing to defend the constitution and laws of Virginia, Attorney General Mark Herring has broken his oath by not just refusing to defend Virginia's marriage amendment, but joining the case in opposition to the constitution. He won't even appoint outside counsel to defend the commonwealth as is the procedure when an attorney general cites some type of conflict.

Please click here to contact Attorney General Herring and ask him to defend the Virginia Constitution and if he is unwilling to do so that he appoint outside counsel to defend the law.

As attorney general, Mark Herring's primary duty is to defend the laws of the commonwealth. Courts have long ruled that laws of the commonwealth are presumed constitutional until determined otherwise through a judicial proceeding. That means the burden is on the person challenging the law to demonstrate that it is unconstitutional. Attorney General Herring is flipping that long-settled legal precedent on its head by not only refusing to defend the marriage amendment, which is presumed by courts to be constitutional, but to affirmatively challenge its constitutionality.

Attorney General Herring points to his predecessor's decision not to defend the constitutionality of a state law passed last year as precedent for his action. But there are significant differences between the cases. Former Attorney General Ken Cuccinelli did not affirmatively challenge the constitutionality of the law and second, he appointed outside counsel to defend the law on behalf of Virginia, as is customary when an attorney general either objects to the law, has a conflict, or the Office of Attorney General lacks expertise in the matter under review. Virginia law takes into account that there may be times where it is not practical or economical for the attorney general to defend the laws of the commonwealth. In those circumstances, Virginia Code §2.2-510 authorizes the attorney general to appoint outside counsel.

Instead, Attorney General Herring unilaterally decided — "after conversations with friends and family" — that Virginia's constitutional amendment defining marriage is unconstitutional. He said he also based his decision on last summer's Supreme Court rulings regarding marriage, but neither of those rulings invalidated state marriage amendments. Simply put, the attorney general of Virginia has no constitutional authority to determine for himself that a law or amendment is unconstitutional. That is for the courts to decide.

His decision today disenfranchised more than one million Virginians who legally voted for the Marriage Amendment in 2006, and left them unable to defend themselves in court.

The decision by the Attorney General Herring is not surprising, but it is disappointing and frightening. It's disappointing that he wouldn't be clear about his intentions on this issue while campaigning for the office. More importantly, it's frightening that politicians such as Attorney General Herring feel that they can pick and choose which aspects of the constitution they deem worthy to defend and apply. Whether one agrees with the Marriage Amendment or not, the idea that more than a million Virginia citizens can be left defenseless by the attorney general after legally voting for an amendment that he himself supported is chilling.

ACTION: Contact Attorney General Herring and ask him to defend the Virginia Constitution or, if he is unwilling to do so, that he appoint outside counsel to defend the law.

Click here to e-mail him


Call his office at (804) 786-2071