Impeaching Mark Herring is a terrible idea

“I’ve never seen anything as brutally clear as this…an odd, set, stony quality to it, as if tomorrow’s already happening and there’s nothing you can do about it. The way you feel before an ill-considered attack – knowing it’ll fail. But you cannot stop it.”

– General John Buford (acted by Sam Elliot), Gettysburg (1993)

Of course, Buford did manage to “stop” his nightmare scenario (the Union Army charging up a hill that could not be taken) by his own actions. I doubt I will be as successful, but I feel I have to try to stop what will be a catastrophic error by the Richmond Republicans: the impeachment of Mark Herring.

Plans to impeach Herring are already afoot. My friend Shaun Kenney has the details. The crime: Herring agreed with plaintiffs suing the state over the 2006 Marriage Amendment. The plaintiffs said it violates the federal constitution, and Herring essentially said the plaintiffs were right. This is apparently a “constitutional crisis.”

I beg to differ. The “crisis” will be within the Republican Party if they actually try to impeach and remove Herring. This is a mistake on multiple levels.

First, there is the matter of constitutions: In case anyone forgot, Herring’s oath is to uphold both the Federal and state constitutions, and the Federal one comes first. You can argue with Herring’s reasoning on whether or not the 2006 amendment violates the Federal Constitution, but he has the power to express his opinion and act on it. To attempt to remove him from office for upholding the Federal constitution (as he sees it) is a much greater danger than anything Herring has done. I would also note that this great concern for the state constitution was appallingly missing back in 2007 when “transportation solutions” were a priority, the result being a dog’s breakfast of legislation that nearly every Republican not named Bob Marshall swore was a great achievement, yet was laughed out of town by a unanimous state Supreme Court. Voters might find the idea that the Constitution is paramount when it can stop same-sex-marriage but irrelevant when it protects their money from the taxman to be…a bit strange (more on that later).

Second, there is the question of Herring’s action: I’m reading some bizarre hair-splitting from some who say that Herring didn’t have to defend the 2006 amendment, but he shouldn’t have opposed it publicly. Why? Based on the rulings from the federal Supreme Court on this matter last year, refusing to defend and openly advocating for the plaintiffs is a distinction without a difference. Does it really matter that Herring is simply open about his agreement with the plaintiffs?

Next up, we have the political implications, which are vast and multi-dimensional. For starters, as I noted above, the RPV’s respect for the state constitution is hardly consistent, and Democrats will gleefully remind voters of that for months and years. Again, voters saw the Richmond Republican crew pass and celebrate a blatantly unconstitutional tax scheme less than a decade ago. They will wonder why the constitution is so important now, and they will conclude that the Republicans care more about stopping gay marriages than keeping taxes low and government limited. That’s the political equivalent of drowning the Commonwealth in blue paint.

Yet there are also ramifications for just this year. Political capital that would otherwise be saved up for stopping Medicaid expansion (Brian Schoeneman explains the financial implications here; he didn’t mention that Medicaid does – at best – nothing to improve the health of the poor, but that would just reinforce the point) or Governor McAuliffe’s budget spending spree will be wasted on an effort doomed to fail (seven Senate Democrats would have to vote to remove Herring from office, and that’s not happening).

Finally, there is the one thing we are all forgetting – the flip side of what Herring has done: I may be the only person to notice this, but there are serious problems with the 1971 Virginia Constitution. Article 10 (on education) specifically discriminates against schools of faith, and could be read to make vouchers illegal in the Commonwealth (a potential violation of freedom of religion). Article 11 (on environmental protection) could be used to ride roughshod over property rights (and the Fifth and Fourteenth federal amendments). Do we really want future Attorneys General to arbitrarily defend an overreaching state government? Or muzzle itself in the face of such overreach? I feel the question answers itself.

For these reasons, impeaching Mark Herring is a terrible idea – one that will damage Virginia, the cause of limited government within Virginia, and the Republican Party of Virginia for years – if not decades.

Cross-posted to the right-wing liberal


9 thoughts on “Impeaching Mark Herring is a terrible idea

  1. I disagree DJ. Under the State Constitution, Herring is required to recuse himself and hire outside counsel to defend State Laws — not join the plaintiffs in an amicus brief. In all these type political cases, liberals like Herring use a hypothetical argument that something is unconstitutional — and try it in their heads — to justify doing anything they want. But his JOB, as set forth in the State Constitution, is to defend state law and the State Constitution as the State’s attorney.

    What law or State Constitutional protection will next fall prey to Herring declaring it unconstitutional and filing amicus briefs the other way ? our gun laws? our laws on parental notification or ultrasound-enabled informed consent ? where does this sort of thing end?

    I can’t imagine Herring will be anything but emboldened to pursue a similar “no rule of law” approach on all manner of other matters if the legislature goes out with a whimper on this.

    I know you are frustrated that in the past our GOP and GOP legislators pushed unconstitutional things like HB3202 — I am too. But we should not use the hypocrisy argument — as Dems LOVE to do — to discourage our GOP from doing the RIGHT thing now.

    Our problem is that all too often the GOP is timid when instead we should be providing strong leadership based on the rightness of our position. If Herring has violated his Oath and the State Constitution, the only appropriate response is articles of impeachment.

    Not bringing articles of impeachment on such a flagrant violation of one’s Oath makes the legislature a tacit partner in this Herring’s move to undermine our rule of law.

  2. Under your line of reasoning his oath of office is meaningless. There is nothing in the US Constitution about marriage.

  3. D.J.- well-reasoned article with multiple points to support your opinion. Two points I want to add.

    My first point is that IMO Herring’s oath COMPELS him to take the position he’s taking. “Huh?!” people like ‘ray Panther’ might ask. Start with Herring’s oath of office, which promises he’ll support both the U.S. & VA Constitutions:
    ““I do solemnly swear (or affirm) that I will support the Constitution of the United States, and the Constitution of the Commonwealth of Virginia,…”

    Can we all agree that Herring is obliged to support both? Good. Next, look at the text of the U.S. Constitution, in which Founding Fathers expressly declare that the U.S. Constitution trumps state law in certain situations.

    #1) U.S. Const., Art. 6, cl. 2 (Supremacy Clause) states: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding. ” Can we agree it’s RIGHT THERE, that the U.S. Constitution is the supreme law of America, even trumping “anything in the constitution or laws OF ANY STATE to the contrary…”

    #2) U.S. Const., Art. III vests judicial power “..in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish…”. In 1803, Marbury v. Madison held that the Supreme Court has the power of judicial review, which includes declaring laws unconstitutional.

    #3) U.S. Const. 14th Amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

    Thus, if a VA Attorney General believed that a part of VA’s Constitution was contrary to the U.S Constitution, given the above, why would the A.G. be compelled to support it? People who say Herring can’t
    “cherry pick” which laws he likes and which ones he doesn’t when a the state’s top law enforcement official, and that Herring’s job “is to enforce them all.” Really? I agree! And at the top of the ladder is the U.S. Constitution. People angry at Herring say he must defend VA’s same-sex marriage amendment, but in doing so, Herring would necessarily be cherry picking by ignoring the U.S. Constitution’s Supremacy Clause, the supreme power of the SCOTUS to review laws, and the Privileges & Immunities clause.

    Second point I want to make– If the anti-Herring folks are correct (i.e., that as our A.G., Herring MUST defend any and every part of VA’s Constitution), this would lead to absurd results and leads to a nonsensical, inflexible legal corner. Let’s imagine that enough VA voters approve a VA Cons’l amendment which allows our Commonwealth to enter into international treaties with other countries. Or, imagine back in the late 1950’s that enough VA voters approved a VA Const’l amendment which allowed for school segregation, contrary to Brown v. Board. Or, let’s pretend that VA voters approved a VA Const’l amendment that says anyone in the Commonwealth Clearly these hypothetical laws would violate the U.S Constitution, and therefore it would proper for a VA A.G. to not enforce those.

    A final note– the views of the anti-Herring folks is similar to the dissenting opinion to Hollingsworth v. Perry, the 2013 companion case to U.S. v. Windsor (declaring DOMA unconstitutional). Recall that in Hollingsworth v. Perry, California decided to not enforce Prop 8, a state constitutional amendment to prohibit same-sex marriage. Thus, supporters of Prop 8 sought to stand in place of CA to defend the law. The majority (5-4 decision) of the SCOTUS held that the Prop 8 supporters lacked standing to defend the law. The dissent (authored by Kennedy) expressed concern that [get ready to nod in agreement, anti-Herring folks…] elected officials ought not be able to nullify laws passed by the electorate. But, keep in mind that the 5 justice majority never said “hey California, you’re REQUIRED to enforce this CA law!”, nor did they say “wait, the SCOTUS is not allowed to rule on constitutionality of Prop 8!”

    We all eagerly await Norfolk federal Judge Allen’s decision on VA’s law. But, IF you READ the Windsor case and understand why the federal DOMA was struck down, it seems inevitable that the Court’s reasoning will result in state laws (prohibiting same-sex marriage) also being struck down.

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