Stroke of the pen, law of the land. Kind of cool.

So said Paul Begala, in reference to executive orders of President Clinton. See Frank J. Murray, Clinton's Executive Orders Still Are Packing a Punch: Other Presidents Issued More, But Many of His Are Sweeping, WASH. TIMES, Aug. 23, 1999, at A1 (quoted in Branum, President or King? The Use and Abuse of Executive Orders in Modern-Day America, 28 J. Legis 1 (2002)).

In this opinion, Attorney General McDonnell ruled that Governor Kaine's Executive Order adding sexual orientation as a protected class within state employment was beyond his powers as Governor.

Among the prior opinions cited was 1983-84 Va. Op. Atty. Gen. 180, by Attorney General Baliles, which says in part:

"Although no provision of the Constitution explicitly authorizes the Governor to issue executive orders and no Virginia statute provides a general grant of authority to issue such orders, Governors of the Commonwealth have historically issued executive orders in the absence of a specific statute expressly or generally conferring the authority. The Governor has the inherent authority to issue executive orders in order to "take care that the laws be faithfully executed." Art. V, § 7. It is recognized that there is a general reservoir of powers granted by the Constitution to the Governor as the Chief Executive of the Commonwealth. See 1945-1946 Report of the Attorney General at 144.

Examples of situations in which executive orders are appropriate are as follows:

(1) Whenever a provision of the Code of Virginia expressly confers that authority upon the Governor. See, e.g., §§ 2.1-51.9, 2.1-51.15, 2.1-51.18, 2.1-51.21, 2.1-51.24 and 2.1-51.27 (permitting the assignment or reassignment of agencies to Cabinet Secretaries by executive order); and § 44.1- 146.17(1) (permitting the issuance of executive orders to carry out the purposes of the Emergency Services and Disaster Law). Compare Boyd v. Commonwealth, 216 Va. 16, 215 S.E.2d 915 (1975), with Jackson v. Hodges, 176 Va. 89, 10 S.E.2d 566 (1940); see, also, 1941-1942 Report of the Attorney General at 75;

(2) Whenever there is a genuine emergency which requires the Governor, pursuant to his constitutional responsibility and power, to issue an order, to abate a danger to the public regardless of the absence of explicit authority. See 1945-1946 Report of the Attorney General, supra; and

(3) Whenever the order is administrative in nature, as opposed to legislative. See 1965-1966 Report of the Attorney General at 143.

An executive order may not, however, be employed when a law is required. See 1977-1978 Report of the Attorney General at 5. This is because the legislative power of the Commonwealth is vested in the General Assembly pursuant to Art. IV § 1, and the Governor may not exercise that power. See Art. III, § 1; Accord Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587, 72 S.Ct. 863, 867 (1952).

Nor may an executive order be used to establish an agency which has authority to implement or enforce the requirements of law. The creation of such an agency requires the exercise of legislative powers in accordance with Art. III § 1 and Art. IV, § 1. An executive order may be used to establish an agency which possesses merely advisory authority, however."

McDonnell's opinion notes that the General Assembly can and does identify the classes to be protected from discrimination in the Commonwealth, citing Va. Code §§ 2.2-2639, 2.2-3004, 2.2-3900, 2.2-3901, 2.2-3902, 2.2-4200, 2.2-4310, 2.2-4311, 15.2-853, 15.2-854, 15.2-965, 15.2-1507, 15.2-1604, 22.1-212.6, 22.1-306, 23-38.110, 23-50.16:24, 23-50.16:36, 23-77.4, 23-91.23:1, 36-96.3, 36-96.4, 38.2-508.2, 38.2-2115, 38.2-2213, 59.1-21.21:1, 62.1-129.1. It also notes: "Since 1997, the General Assembly has on 17 occasions considered bills adding sexual orientation to various nondiscrimination statutes. The General Assembly repeatedly has rejected these proposals and has declined to change the Commonwealth’s public policy by adding sexual orientation to its statutes barring discrimination in a variety of contexts, including employment. In fact, the General Assembly earlier this month again declined to adopt this public policy during the current legislative session."

Given all that background, the Attorney General's conclusion seems to me not only plausible, but perhaps inescapable.

I'm surprised, however, that there was no mention of the Supreme Court's decision in Boynton. In that 2006 case, the Supreme Court held that the Virginia Personnel Act, the execution of which is to be directed by the Governor, does not apply to present and former employees of the Office of the Attorney General. It seems possible that the Governor's claim of authority is the weakest with respect to those segments of the state's work force similarly exempted under Va. Code 2.2-2905, which include:

1. Officers and employees for whom the Constitution specifically directs the manner of selection; 2. Officers and employees of the Supreme Court and the Court of Appeals; 3. Officers appointed by the Governor, whether confirmation by the General Assembly or by either house thereof is required or not; 4. Officers elected by popular vote or by the General Assembly or either house thereof; 5. Members of boards and commissions however selected; 6. Judges, referees, receivers, arbiters, masters and commissioners in chancery, commissioners of accounts, and any other persons appointed by any court to exercise judicial functions, and jurors and notaries public; 7. Officers and employees of the General Assembly and persons employed to conduct temporary or special inquiries, investigations, or examinations on its behalf; 8. The presidents, and teaching and research staffs of state educational institutions; 9. Commissioned officers and enlisted personnel of the National Guard and the naval militia; 10. Student employees in institutions of learning, and patient or inmate help in other state institutions; 11. Upon general or special authorization of the Governor, laborers, temporary employees and employees compensated on an hourly or daily basis; 12. County, city, town and district officers, deputies, assistants and employees; 13. The employees of the Virginia Workers' Compensation Commission; 14. The officers and employees of the Virginia Retirement System; 15. Employees whose positions are identified by the State Council of Higher Education and the boards of the Virginia Museum of Fine Arts, The Science Museum of Virginia, the Jamestown-Yorktown Foundation, the Frontier Culture Museum of Virginia, the Virginia Museum of Natural History and The Library of Virginia, and approved by the Director of the Department of Human Resource Management as requiring specialized and professional training; 16. Employees of the State Lottery Department; 17. Production workers for the Virginia Industries for the Blind Sheltered Workshop programs; 18. Employees of the Virginia Commonwealth University Health System Authority; 19. Employees of the University of Virginia Medical Center; 20. In executive branch agencies the employee who has accepted serving in the capacity of chief deputy, or equivalent, and the employee who has accepted serving in the capacity of a confidential assistant for policy or administration; 21. Employees of Virginia Correctional Enterprises; 22. Officers and employees of the Virginia Port Authority; 23. Employees of the Virginia College Savings Plan; 24. Directors of state facilities operated by the Department of Mental Health, Mental Retardation and Substance Abuse Services employed or reemployed by the Commissioner after July 1, 1999, under a contract pursuant to § 37.2-707; 25. The Director of the Virginia Office for Protection and Advocacy; and 26. Employees of the Virginia Tobacco Settlement Foundation.

(I suppose a similar point is made in footnote 23, which says: "Moreover, the Governor’s authority to set policy is limited to the executive branch. See § 2.2-103(A). Executive Order No. 1 attempts to regulate 'all facets of state government.' See Exec. Order No. 1, 18:11 Va. Reg. Regs. 1431 (Feb. 11, 2002), revised 22:10 Va. Reg. Regs. 1701 (Jan. 23, 2006). The term, 'all facets,' would include the legislative and judicial branches of state government. To the extent the Executive Order is appropriate, it can only apply to the executive branch.")

A lot of the discussion in the McDonnell opinion did not really make sense to me, until I re-read the executive order, which purports to declare the "firm and unwavering policy" of the Commonwealth. "Public policy" is the basis for the law of wrongful discharge in Virginia. An enterprising plaintiff's lawyer might take Governor Kaine's declaration of public policy and use it as a basis for a Bowman claim against a private employer. I think part of the Attorney General's opinion is addressed to preclude that argument.

UPDATE: Here is Claire Gastanaga's post on the AG opinion. Respectfully, I disagree with just about everything she said. With regard to the "activism" charge, I'm not sure what that means any more, but I have been loosely following the discussion about Justice Breyer's book, as the counterpoint to Justice Scalia's book, having read neither. The latest discussion I heard about this suggested that one difference between Breyer and Scalia was that Breyer was more concerned about making a statute doing what it was supposed to do, in spite of the text if necessary, while Scalia would rather sooner see the statute fail of its purpose than go beyond the text. This AG opinion seems to me the product of the latter kind of decisionmaking. It contains no discussion at all of the merits of the policy at issue. In that sense, the charge that the Attorney General will let politics dictate his legal analysis is, in my view, wholly unsustainable.