BY JEFF E. SCHAPIRO Richmond Times-Dispatch
For opponents, Governor Glenn Youngkin’s proposal is about LGBTQ schoolchildren about cruelty, driving them out of toilet cubicles and into closets of shame. For supporters, it’s about the struggle, affirming a traditional, father-know-who-best family ideal that probably never existed.
It comes down to the process: who controls a particular lever of power and how creatively it is used or — for those aware of Virginia’s constitution and laws — abused.
The courts establish that distinction, but that assumes there is a challenge. There may be a reason for Youngkin’s alleged assault on LGBTQ rights, adding to the pile of lawsuits his administration has faced over COVID-19 masking, a tipline for reporting allegedly woken up teachers, and access to environmental documents.
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Youngkin is doing what some of his more recent predecessors, Democratic and Republicans, have done when faced with a hostile legislature: testing the limits of executive power to implement policies that might require approval from the General Assembly. It’s a matter of Youngkin’s move to take Virginia out of a multi-state consortium to get the greenhouse gas under control.
Lawmakers are equally arrogant about exercising their power over possible obstacles. They use the budget, which as state law supersedes all others, as an omnibus and fold into it provisions that have nothing to do with spending. The current budget expires on June 30, 2024, but includes a provision that lives on: a ban on electronic skill game machines.
In Virginia, combining two unrelated measures — the effect of which is to prevent separate votes by lawmakers on both, limiting voter accountability — is typically discouraged because, on the face of it, the practice violates provisions in the state constitution and the rules of the House and Senate.
This go-it-alone approach — this brinkmanship — has become more commonplace in Virginia as the executive-legislative consensus becomes more elusive. It’s the Washingtonization of state politics: tribal, mean, based on procedural games.
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In 1996, Republican George Allen wanted to apply the governor’s veto to parts of the budget that he and the Democrat-dominated legislature had already agreed upon. The Virginia Supreme Court, involved in the dispute by the administration, ruled in a single vote that Allen went too far.
A deadlock over budget revisions — fellow Republicans who controlled the House and Senate couldn’t agree on further tax cuts — freed Jim Gilmore in 2001 to implement them himself. While enacting a constitutional requirement to balance the budget, Gilmore also maintained momentum for his signature initiative: the car tax rollback.
In an effort to expand Medicaid for Obamacare, Democrat Terry McAuliffe, defeated by Youngkin for a second non-consecutive term, tried to find ways to circumvent the General Assembly’s supremacy over spending.
In 2016, a year of the presidential election, McAuliffe’s commitment is to recover a lot the voting and civil rights of more than 200,000 criminals who served their sentences were narrowly overturned by the state Supreme Court in a lawsuit by the leadership of the Republican-controlled legislature.
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In that decision, the judges made a comment that Youngkin, who was a CEO of a company used to getting his way, might consider in this battle over LGBTQ rights: “Deeply anchored in Virginia’s legal tradition is a cautious and incremental approach to each executive branch.”
Youngkin wants the state’s 133 independently administered school districts to adopt his policy that requires transgender students to use the restrooms and locker rooms appropriate to their birth, “except as otherwise required by federal law.”
It is also prohibited for teachers and administrators to address a student by any other name or pronoun unless written permission has been given by a parent. Changing a student’s name or gender on school records would require a formal request from the family.
To be victorious in Loudoun County, ground zero in its crusade against wakefulness, Youngkin hints that he will campaign for board candidates who share his views. What’s to stop him from meddling in school board competitions elsewhere? So much for the tradition of impartial school board elections in Virginia.
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Youngkin, through the education department he controls through his appointment as Chief Inspector, replaces his guidelines with those of the Democrat he succeeded, Ralph Northam.
In 2020, with Democrats in full control of the state government, Northam mandated that transgender students be allowed to use facilities and participate in programs appropriate to their gender identity, and that school staff must use a student’s preferred identity and pronouns.
The law under which Northam acted is permissive, allowing Youngkin to put his spin on LGBTQ policies. Where it gets tough for Youngkin, according to legal experts quoted by The Richmond Times-Dispatch, The Washington Post and others, is that his proposed rules appear to violate state and federal civil rights laws, constitutional protections and the court rulings they uphold. .
In that regard, would Youngkin not so much push the limits of his authority as disregard it, by failing to do what Article V, Section 7 of the state constitution requires: “The governor shall see to it that the laws are faithfully executed”?
He must expect a legal challenge. Youngkin—his lawyers—is trying to perfect the record by including in his plant language that school boards adhere to civil rights law. However, he does not say how.
Some school boards were confused by Northam’s guidelines. Others were defiant and rejected them because of stricter standards. Witness conservative Hanover County. Early rumors about Youngkin’s plan point to a conservative-liberal divide.
Perhaps more important now is Youngkin’s presidential election shtickcausing him to campaign for full-fledged MAGA and MAGA-lite governor candidates in Georgia, Kansas and Arizona in the coming days.
Eager to keep his burgeoning national audience in the loop, Youngkin spoon-fed his LGBTQ splash to the friendly — uncritical conservative media — hours before announcing it to the Virginia press with whom he selectively handles and whose diminished presence he exploits.
The stories, whether told in Virginia or beyond, eventually intersect, exposing Youngkin as a trans-Republican who presents himself as a solution-oriented realist but identifies as a right-wing culture fighter.
Contact Jeff E. Schapiro at (804) 649-6814 or firstname.lastname@example.org. Follow him on Facebook and on Twitter, @RTDShapiro. Listen to his analysis 07:45 and 17:45 Fridays on Radio IQ, 89.7 FM in Richmond and 89.1 FM in Roanoke, and in Norfolk at WHRV, 89.5 FM.