Category Archives: Governance

Northam Back-to-School Plan Unconstitutional, DeSteph Says

by James A. Bacon

Wise King Ralph may have a problem with his back-to-school plan for this fall: Some of his subjects think it may be unconstitutional.

Under the Governor’s directive, schools will return to something resembling normal in three phases. The most controversial part of the plan requires staggering classes so students attend in-person some days and remotely on others. Critics have questioned the quality of teaching that can occur in such an environment, and have noted that keeping kids at home makes it difficult for parents to go back to work.

Senator Bill DeSteph, R-Virginia Beach, issued a letter yesterday saying that the plan is not only misguided, but it is unconstitutional.

Despite the emergency authority being executed by your office, it is the General Assembly, not the Governor, that is given the power and authority to formulate the policies in our educational system for school boards to apply. Your plan announced June 9th is best characterized as gubernatorial overreach.

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The Ups and Downs of Felix Dzerzhinsky

Felix Dzerzhinsky toppled. Photo credit: AP Photo/Alexander Zemlianichenko.

By Peter Galuszka

For three decades, a 15-ton statue of Felix Dzerzhinsky loomed over a square in downtown Moscow. He rose high near the Lubyanka building, a turn of the century, yellow-colored one-time insurance office that served as the national headquarters for the KGB.

“Iron Felix,” born of Polish nobility, is best known as V.I. Lenin’s henchman, the leader of the Red secret police who orchestrated the deaths of hundreds of thousands during the Russian Civil War. He became regarded as the grandfather of various Soviet security agencies, including the MVD, NKVD, KGB and now the FSB and SVR.

Then in August 1991, Soviet hardliners attempted a coup against Mikhail Gorbachev, the reform-minded Communist Party chief. The coup failed, touching off a storm of retribution.

As many as 1,320 statues of Lenin cross the country came down. Leningrad became St. Petersburg, the Kirov Ballet reverted to its old name, the Mariinsky Ballet, and the city of Moscow ordered the statue of Felix taken down.

In order words, there is a strong similarity between what happened just before the Soviet Union fell apart in December 1991 and what is going on today in this country, especially in Virginia. Continue reading

Polybius, ANTIFA, and the Cycle of Discord

by Scott Lingamfelter

When I awoke this morning, like many of you, I found myself genuinely concerned about what is going on in America. The violence, looting, the wanton destruction of life and property are both shocking and unacceptable. Most people are angry with the murder of George Floyd at the hands of a rogue policeman. Protesters are being heard. Unfortunately, the anarchists of ANTIFA, a so-called anti-fascist coalition, have infiltrated and are fanning the flames of destruction and hatred in America.

Some refer to groups like ANTIFA as occupying the “far-left” on the political spectrum opposite extremists on the “far-right,” including those who proffer racial hatred. This is a false distinction that masks—pardon the pun—the current face of political America and society at large. The political spectrum is not simply one of ideologies with liberals on one end and conservatives on the other. The political spectrum actually extends from the extremes of tyranny (or absolute rule) on one end to anarchy (or lawlessness) on the opposing end. This is not new thinking.

The founders of America were very aware of lessons from Greek historian Polybius who in the second century B.C. defined the “orders” of society that were first identified by Plato in the fourth century B.C. These included rule by one (monarchy), rule by a few (aristocracy), and rule by many (democracy). All of these “orders” bore risks as they were represented in government. Continue reading

Virginia Regulations for the Licensure of Nursing Facilities Violate Virginia Law

James C. Sherlock

The weaknesses of Virginia’s nursing facility (NF) and skilled nursing facility (SNF) system have been exposed by COVID-19 with deadly consequences. 

Virginia’s licensing regulations applicable to these facilities are both part of the problem and violate Virginia law. 

This essay recommends an straightforward permanent fix that will bring Virginia regulations into compliance with Virginia law, save considerable money and eliminate state standards that conflict with federal standards for the same facilities and thus contribute to regulatory chaos.

Regulations

Virginia regulations must be changed to conform to federal Medicare and Medicaid regulations for long-term care facilities to comply with the clear direction of Code of Virginia § 32.1-127. That law requires that Virginia regulations for hospitals and nursing homes “conform” to “health and safety standards established under provisions of Title XVIII (Medicare) and Title XIX (Medicaid) of the Social Security Act.”  Continue reading

Our Gutsy Governor

By Peter Galuszka

On June 24, 2015, Nikki Haley, a Republican who was South Carolina’s first non-white governor, called for the removal of a Confederate flag that had been flying over the state’s capitol grounds for years.

“This flag, while an integral part of our past, does not represent the future of our great state,” she said. Her action came a few days after an avowed white supremacist walked into an African-American church and opened fire, killing church members attending a service.

I was watching the news on TV when she made her gutsy move. I was deeply impressed.

And now, Ralph Northam, a Democrat who is governor of Virginia, has taken a similarly gutsy move. He has ordered that the state-owned statue of Confederate General Robert E. Lee be removed from its stand on Monument Avenue in Richmond. It has been there for about 130 years, erected by white supremacists with deep sentiment for their romantic myths of Southern history.

“I believe in a Virginia that learns lessons from our past and we all know that our country needs that example right now,” Northam said. Continue reading

Virginia Disaster Law is Fatally Flawed

by James C. Sherlock

Executive Summary
It is an urgent legal necessity to revise the Commonwealth of Virginia Emergency Services and Disaster Law of 2000. That law has never been tested in court. It has many flaws that both hinder good governance in Virginia and will be exposed as potentially unconstitutional in any judicial review.

1. The law gives the governor authority to declare a state of emergency and thus activate his or her emergency powers without any review or authority to repeal the declaration by the General Assembly, even ex post facto. That gives the authority to the governor to grant himself the powers to both create offenses by decree and to police them.

2. The law gave the General Assembly no role in emergency response, even if it is in regular session and/or the emergency lasts for a very long time.

3. 1. and 2. provide clear challenges to the Guarantee Clause (Article IV, Section 4) of the U.S. Constitutio:. “The United States shall guarantee to every state in this union a republican form of government.”

4. The law did not provide for a General Assembly role in confirming or rejecting executive orders that restrict constitutionally guaranteed freedoms. Such restrictions have far stronger chance of being upheld in state and federal courts if the General Assembly plays a role, at least ex post facto, to confirm, modify or reject such an order.

5. The law puts no reasonable time limits on either the state of emergency itself or the executive orders resulting from the emergency. Under the current law both the state of emergency and executive orders, absent action by the governor that proclaimed both, expire on June 30, 2021, at which point he can renew them.

6. The law does not make provisions to put the General Assembly in position to participate in emergency response in a streamlined, more time sensitive manner and efficient manner.

7. All of these mistakes perhaps can be shown to have resulted from the consideration of only short duration disasters such as the ones listed in the law, not a pandemic of the duration of the one we are facing.

With the arrival of a pandemic, both sides of the aisles in both houses of the General Assembly have realized that law both makes them irrelevant and makes the law itself a prime target for judicial reversal. It is time to change the law. The August special session is the venue.
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Wisconsin Supreme Court calls a Halt to Governance by Decree

by James C. Sherlock

The creation of laws in America is subject to separation of powers, as is their review for constitutionality by the courts.

The question in the current crisis is about executive orders. One-person rule was the primary fear of the founders of the republic and is exquisitely guarded against by separation of powers structures and specified individual rights in the Constitutions of the United States and of each sovereign state. Where a state doesn’t guarantee individual rights, the U.S. Constitution is supreme.

Virginia’s law granting unlimited executive authority for an unlimited period in a crisis that the Governor himself declares is a prima facie violation of both the Virginia and U.S. Constitutions.

There is a readily available remedy — participation by the General Assembly in decisions for which the Governor is instead empaneling citizen committees and then ignoring them (see in Virginia the 24-person panel on openings).

There are three available paths to the remedy:
1. The courts can find the law unconstitutionally vague and sweeping and declare it unconstitutional;
2. State legislatures can fix the problem by changing the law and overriding any gubernatorial veto, which needs to be done regardless of court actions;
3. Both Continue reading

Limit the Governor’s Power to Restrict Constitutional Freedoms at His Sole Discretion

by James C. Sherlock
Updated May 9 at 8:15 AM

The U.S. Constitution proceeded from and combined with the Declaration of Independence to form the basis on which we the people agreed to form a government. At its core it limits government so that government cannot limit freedom. The separation of powers within each state government and all laws of each state must conform to its requirements.

Judge Andrew Napolitano sees violations of the U.S. Constitution in the responses of some Governors to COVID-19. We need not agree to see what can be done to limit the power of a single individual to restrict freedoms while preserving state capabilities to act in extremis.

The law change I propose for Virginia is appropriate for every state in the country that gives its Governor the unfettered authority to declare an emergency and then, by virtue of that declaration, govern through executive orders and levy penalties for their violation without approval of the General Assembly.

I am going to take the judge’s findings and offer a layman’s assessment of current law and the constitution of Virginia of what might be done to meet potential U.S. constitutional objections.

The findings here about the shortcomings in Virginia law reflect objective assessment of Virginia law as written and of the U.S. Constitution.

My proposition is that if changes can be made in Virginia law to protect rights without negatively affecting state government response, then they must be made. Continue reading

WTJU Podcast: COVID-19 and the Economy

By Peter Galuszka

Here’s is the twice-monthly podcast produced by WTJU, the official radio station of the University of Virginia. With me on this podcast  are Nathan Moore, the station general manager, and Sarah Vogelsong, who covers, labor, energy and environmental issues across the state for the Virginia Mercury, a fairly new and highly regarded non-profit news outlet. Our topic is how Virginia is handling the economic fallout from the COVID-19 pandemic.

Why Northam Is Such An Important Governor

By Peter Galuszka

This is a bit like throwing chum at a school of sharks, but here is my latest in Style Weekly.

I wrote an assessment of Gov. Ralph Northam that is overall, quite positive. My take goes against much of the sentiment of other contributors on this blog.

They are entitled to their views but, to be honest, I find some of the essays shrill and not really fact based. If Northam wants to delay elective surgeries at hospitals for a week or so, some want to empanel a grand jury.

An acute care health facility in Henrico County becomes one of the most notorious hot spots for coronavirus deaths and it is immediately Northam’s fault even though the care center has had serious problems that long predated the governor’s term in office.

He’s a trained physician who served as an Army doctor in combat during the Iraq War yet he is vilified as being incompetent and incapable of understanding the COVID-19 pandemic.

It’s like the constant repetition of the “Sins of Hillary” on Breitbart and Fox News about emails and Benghazi.

Like him or not, Northam is bound to be one of the most consequential governors in Virginia history given the gigantic problem of the pandemic. He’s not a showboat salesman like Terry McAuliffe nor a smarmy, small-time crook like Robert F. McDonnell.

Anyway, here’s the piece.

Notes from the Right Wing Echo Chamber

By Peter Galuszka

On Wednesday, I was standing next to the Capitol grounds in Richmond watching brightly decorated cars and pickups drive on 9th Street, their horns blaring.

I was attending the drive by protest rally on assignment for Style Weekly and happened to speak to Jason Roberge, a Spotsylvania County resident who is one of several Republicans hoping to oust U.S. Rep. Abigail Spanberger, a former covert CIA officer who represents the 7th Congressional district.

Roberge was there to protest what he says is Gov. Ralph Northam’s “terrible job” in temporarily shutting down businesses to prevent the spread of the COVID 19 virus. The rally was part of a series of protests across the country that are being set up on cue from right-wing activists.

Roberge told me: ”I hear he’s (Northam’s) down on North Carolina beach while this is going on.” As he spoke the House of Delegates was holding a special session under an outdoor tent nearby while the Senate presided at the Science Museum of Virginia.

Northam at the beach? It turns out that the conservative echo chamber has been peddling a story, firmly denied by Northam’s office, that he was at his house in Manteo, N.C. not far from the beaches at Nags Head during the special General Assembly session. Continue reading

Right Wing Uses Virus To Stifle Needed Reforms

Statue of Gov. Harry F. Byrd on the state capitol grounds.

By Peter Galuszka

Right-wingers in Virginia have been apoplectic for months that Democrats finally captured the General Assembly after years of Republican control.

They also were enraged that the legislature this winter passed a number of reforms that would draw Virginia into the 21st Century such raising the minimum wage, boosting collective bargaining, tightening rules on carbon pollution and raising taxes for cigarettes, a deadly product.

Now such conservatives are using the COVID-19 pandemic as an excuse to throttle or delay such needed reforms. They have banded into groups such as the Coalition fort a Strong Virginia Economy. They have used the Virginia Municipal League’s complaints against the reforms, claiming they cost too much, as a way to derail new measures.

According to the left-leaning blog site Blue Virginia, one of the more extreme advocates for scrambling changes is Dave LaRock, a far-right Republican delegate from Loudoun County. A pronounced gay-basher, LaRock wants to squelch all of the reforms made by the more progressive General Assembly. Continue reading

Is Aubrey Layne Serious about a $2B “Hit” to Virginia’s Biennial General Fund from COVID-19?

By DJ Rippert

Penny Layne. Aubrey Layne is Virginia’s Secretary of Finance under the Northam Administration. Previously, Layne served as Secretary of Transportation under the McAuliffe regime. Prior to his time in government Layne held a number of executive positions in private enterprise including the presidency of Great Atlantic Properties. Layne is listed by Wikipedia as being a Republican. If true, he must have shown considerable competence and talent to be appointed to senior positions in two consecutive Democratic administrations.

Five days ago, during a Q&A with Richmond Times-Dispatch Magazine Layne effectively made an astonishing prediction. He was asked about the economic fallout from the COVID-19 epidemic in Virginia. The interviewer noted that COVID-19 would trim $2 billion from the state’s $48 billion General Fund budget within the $135 billion biennial budget. Here’s the question, “When the state budget was passed earlier this month, it was based on a full-throttled economy. Now the state is forecasted to lose potentially $2 billion in the upcoming two-year budget because of the coronavirus pandemic. How will the Northam administration address the drastic change facing the approved $135 billion budget?” Layne went on to answer that question and others without ever calling the $2 billion estimate into question.

Is it possible that the economic hit to Virginia from COVID-19 (even after federal bailout money) will only be $2 billion from the General Fund over two years? That’s just over 4% of the General Fund and just under 1.5% of the total budget.

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“We Are All Keynesians Now”

John Maynard Keynes

By Peter Galuszka

John Maynard Keynes, the British economist, advocated government spending and monetary intervention as suitable for modern economies.

When I was a student at a liberal college in New England in the early 1970s, we were taught that Keynes very much had the right idea. As evidence, we had the Great Society programs of Lyndon B. Johnson and, strangely, the Vietnam War. They all relied on vast amounts of deficit public spending.

Since then, free-market types came into favorable light and it all became the magic of the market, little regulation and other panaceas.

According to whom you read, pro-capitalism economist Milton Friedman admitted the necessity of Keynes’ thinking by stating, “We’re all Keynesians now.” President Richard Nixon, a Republican, is also credited with the quote when he took the U.S. off the gold standard.

The phrase is taking on increasing relevance with the COVID-19 pandemic. Virginia is no exception. Continue reading

Northam Declares State of Emergency

Photo credit: Patch (McLean)

by DJ Rippert

Danger! Danger! Yesterday, Governor Ralph Northam declared that the Old Dominion was in a state of emergency due to the Coronavirus. Northam exercised these emergency powers five days after the first Coronavirus case was confirmed in the state. The online Patch newspaper from McLean reports that “a statement from the governor says the declaration gives the state flexibility to east [SIC] regulatory requirements and procurement rules, continue federal and multi-state coordination and continue access to critical services.” Northam also announced plans for state employees to work from home.

Northam’s declaration of emergency was considerably slower than in many other states. In Maryland, for example, Republican Governor Larry Hogan declared a state of emergency on the same day that the first cases of Coronavirus were confirmed. Yesterday, Maryland detected the first case of Coronavirus caused by community spread. Continue reading