- - Thursday, October 26, 2017


Virginia’s election for state attorney general may not be on many minds outside of the state, but the outcome on Nov. 7 could have far-reaching implications.

The race pits conservative John Adams against incumbent liberal Attorney General Mark Herring.

Mr. Adams, a former clerk for Justice Clarence Thomas, is a staunch defender of religious freedom, free speech, and the Second Amendment. In other words, he’s a strong supporter of the Constitution.

Mr. Herring’s philosophy and adherence to the Constitution, by contrast, are much more flexible, and have changed with the political winds and whims of his liberal constituents.

When Mr. Herring was in the state Senate, for example, he was opposed to same-sex marriage, but once he moved on to become attorney general, he took on the cause célèbre of promoting same-sex marriage, choosing to ignore the plain text of the Virginia state constitution.

Over the past decade, attorneys general have played a more prominent role in national politics. At the same time, two entirely distinct schools of thought have emerged in the attorney general sphere nationwide. On the one hand, there is a renewed interest among mostly conservative attorneys general in protecting the state’s interests and the interests of the state’s residents from the increasing heavy-handedness of the federal government. But, on the other hand, there is a growing movement among liberal activist attorney generals to pursue an outcome-driven agenda, irrespective of the Constitution.

What we are witnessing now is not merely a clash of agendas between liberal and conservative attorneys general, but, at an even more basic level, we are witnessing a debate about the proper role and function of a state attorney general. The debate boils down to whether state attorneys general are charged with defending the state constitution and the United States Constitution, or if attorneys general are empowered to disregard the plain text of laws to champion (liberal) causes of the day.

The Obama era’s overgrowth of the federal government sparked a desire among Americans for the state attorneys general to play the role of safe-guarders of the Constitution. During those years, conservative attorneys general performed the much-needed function of reining in the federal government. Americans were able to see firsthand one of the most important benefits of our system of federalism, as state attorneys general sued the Obama administration over its repeated violations of the Constitution. The attorneys general sued over ObamaCare’s insidious individual mandate that trampled the Constitution, over the federal government’s Medicaid expansion that saddled states with a huge financial burden, and over the administration’s overreach, especially emanating from the Environmental Protection Agency, to name only a few.

The Obama administration’s overreach created an urgent imperative for attorneys general to step in and defend both the Constitution and the American people from a federal government that felt comfortable ignoring the plain language of the Constitution and the laws on the books.

The Obama years showcased the important role attorneys general can play in defending the Constitution against the creeping overreach of the federal government. But what does it look like when attorneys general go rogue and decide to adhere to liberal causes, rather than to the Constitution?

The most recent example comes from 19 liberal attorneys general (including Virginia’s Mark Herring) who are suing the Trump administration to force it to continue to pay the Obama-orchestrated health care subsidies aimed at lowering some out-of-pocket health care costs for lower-income individuals. The Constitution clearly requires that all funds be appropriated by Congress, but President Obama - never one to let the Constitution stand in his way - and his administration unilaterally authorized this appropriation of funds. The Trump administration, in reversing this illegal scheme by the Obama administration, is following the Constitution.

The significance here is worth noting. Nineteen attorneys general, led by California’s Xavier Becerra, are suing the federal government to retain an unconstitutional and illegal Obama policy. The Constitution, for those attorneys general, is of zero concern.

And, in recent months, liberal attorneys general have also played the role of activist when it comes to defending other illegal Obama-era policies, including DACA, the Deferred Action for Childhood Arrivals.

Virginia’s incumbent attorney general fits squarely in the mold of the liberal activist attorney general. The Democratic Attorneys General Association (DAGA) is heavily invested in ensuring that Mark Herring remains in his position as Virginia’s top lawyer. And why not? Herring routinely sides with DAGA’s progressive agenda over the Constitution and the interests of Virginia, and he is a reliable voice for liberal pet causes.

Virginia’s residents deserve a lawyer who will work to defend them, their interests, and the Constitution — not the liberal causes du jour. Virginia has the opportunity on Nov. 7 to elect a new lawyer. John Adams is the right person for the job.

Jenny Beth Martin is chairman of Tea Party Patriots Citizens Fund.

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