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On the Family Foundation’s Lawsuit against Governor McAuliffe

I had a great lunch several Fridays ago with Josh Hetzler, the Legislative Counsel for the Family Foundation of Virginia.  Josh was informing me on the lawsuit supported by the Foundation against the Governor of Virginia in re abortion regulations.

I confess – I am not well versed in administrative law – but I think this suit is critical to all Virginians – on whichever side of the abortion issue you find yourself on.

So much of Virginia (and more Federal law) is based on regulations:  The Truth in Lending requirements – and the leading one being the APR – the annual percentage rate – that must be prominently stated on loan documents – this is not an Act of Congress but is a regulation (Regulation Z I think) and this regulation is binding on all lenders.  Unelected regulatory bodies decide what the regulation is.

So regulations can be critical.  There is a procedure for the enactment of regulations – usually public notice and comment period before enactment.  The regulations must usually have to be authorized by the law calling for regulatory action.  The theory behind it is that legislatures make laws and policy decisions (saving endangered species for example) and then the implementation of the law is delegated to the regulatory body (to determine what criteria makes a species endangered for example).

Here is what the Family Foundation says about the issue on its website:

It would seem to be a matter of bi-partisan concern, then, when over the course of more than three years, the Virginia Department of Health, at the prompting and with the aid of the Governor and Attorney General, engaged in actions which violated numerous provisions of the Administrative Process Act, various other sections of the Virginia Code, and Gov. McAuliffe’s own Executive Order clarifying the rules of the regulatory process. In doing so, the Department impermissibly expanded its amending of six regulatory sections to a total of twenty-one sections, and the public was effectively shut out of the process.  (my emphasis)

If regulations can be enacted and become laws we have to follow upon pain of jail or fines without following the laws designed to govern the regulatory process, than we have tyranny.  Just that simple.  And conservative Republican tyranny is just as bad as liberal Democratic tyranny.

I’ll have more to say on this matter.  Stay tuned.

UPDATE:  I made two small changes to state that the Foundation is not filing the suit nor is it’s counsel the attorney for the plaintiffs.  I regret the imprecise language.

 

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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