Wall Street Journal: Terry McAuliffe’s Legal Contempt
September 12, 2016
President Obama has charted new levels of executive defiance, but even he hasn’t refused to obey a Supreme Court ruling. Virginia Governor Terry McAuliffe has sought to follow Mr. Obama’s executive hubris, and now he’s gone further and is acting in contempt of the court that has rebuked him.
In July the Virginia Supreme Court struck down his executive order restoring voting rights to 206,000 felons. Under Virginia law the Governor can grant clemency on an individual basis. But the justices wrote that “Governor McAuliffe’s assertion of ‘absolute’ power to issue his executive order” runs “afoul of the separation-of-powers principle” in the Virginia constitution. The individual clemency power, the court admonished, “does not mean he can effectively rewrite the general rule of law.”
Mr. McAuliffe replied that he “cannot accept” the ruling. He called it a “political decision” that “reminded” him of Bush v. Gore and that the justices were “scared” of the legislature. He has since acted on his defiance by restoring rights to some 13,000 felons who had already registered to vote when the state Supreme Court’s decision invalidated his executive order.
The Democratic Governor claims he is restoring these voting rights by the thousands on an “individual” basis. And he says he plans to do so for all of the more than 200,000 remaining felons by the time his term ends.
This is contempt of both the court and the legislature, or what is known as the “suspension” of a law simply because an executive disagrees with it. This is why the Founders wrote the Constitution to protect against such actions by kings, and Virginia Republicans have now gone to court again to stop him. Their filing last week, submitted by former U.S. Assistant Attorney General Chuck Cooper, argues that Mr. McAuliffe’s mass restoration orders “have precisely the same scope, precisely the same effect, and accomplish precisely the same unconstitutional suspension of Virginia’s felon-disenfranchisement law.”
The brief says the court identified two characteristics of an unconstitutional suspension of the law, and both depended on the substance—not the form—of the Governor’s actions. Mr. McAuliffe has nullified the Virginia Constitution’s guidelines on felon voting simply because he dislikes those rules. His new actions are also precisely the same “expansive scope and generality.” The court rejected Mr. McAuliffe because he had “rewritten the provision to invert the rule and the exception.”
The state Supreme Court wrote in July that the Governor violates the state constitution not only when he “issue[s] a single, categorical order restoring voting rights to all felons” but also when he “issu[es] categorical, absolute pardons to everyone.” Chief Justice Donald Lemons adds that an unlawful suspension happens when a Governor is willing to to “set[ ] aside a generally applicable rule of law based solely upon his disagreement with it.”
At stake is whether an executive can first rewrite the law in defiance of the legislature and then do what he wants anyway in defiance of a court. We are well down the road to tyranny if Mr. McAuliffe gets away with this.