Can the Governor of Virginia issue an executive order or guidance document that suspends a state regulation?

Plain-English summary

Delegate Robert Marshall asked the AG a sharp constitutional question with a specific real-world hook. The Governor-elect at the time had said as a candidate that he would direct regulators to stop applying certain abortion-facility regulations (the so-called "TRAP" regulations, which classified abortion facilities as hospitals for some regulatory purposes). Marshall asked whether a governor had the power to issue a directive suspending a properly adopted regulation. The AG framed the answer in general terms, but the answer was no, and the same answer would apply to any subject.

The opinion walked through three independent constitutional grounds.

The take care clause. Article V, § 7 of the Virginia Constitution requires that "[t]he Governor shall take care that the laws be faithfully executed." Validly implemented regulations carry the force of law (a point the Virginia Supreme Court confirmed in Manassas Autocars, Inc. v. Couch). So a directive that ordered agencies to ignore a regulation would itself be a failure to take care that the laws were faithfully executed. The opinion traced the lineage of the take care clause to the English Bill of Rights of 1689, which abolished the royal "suspending" and "dispensing" prerogatives, and noted that nearly identical language appears in the U.S. Constitution and in every Virginia Constitution since 1830.

The express suspending-power prohibition. Where the federal Constitution relied on the take care clause alone, Virginia went further. Article I, § 7 (originating in § 7 of the Virginia Declaration of Rights of 1776) explicitly provides "[t]hat all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised." This is a direct prohibition. Any executive order, executive directive, or guidance opinion that purports to suspend a regulation runs into this clause head-on.

Separation of powers. Article I, § 5 and Article III, § 1 separate the legislative, executive, and judicial departments. Administrative regulations are an exercise of delegated legislative authority (the General Assembly delegates to agencies the power to fill in policy details under "specific policies and definite standards"). When the Governor unilaterally suspends a regulation, he is in effect repealing a piece of legislation, which is a legislative act the General Assembly never delegated to him.

What the Governor can do. The opinion was careful not to leave the impression that the Governor is powerless over regulations. The Governor has significant levers:

• Statutory role in regulation review under the Administrative Process Act (§§ 2.2-4007.01, 2.2-4013, 2.2-4014).
• Appointment of agency heads and board members (Va. Const. art. V, § 10; § 2.2-107) and, through them, influence over the regulations agencies pursue.
• Statutory power to require reports and inspect agency records (Va. Const. art. V, § 8).
• Authority to issue executive orders, executive directives, and guidance documents within their proper scope (the AG noted the historical foundation for executive orders in the take care duty itself).

What can't be done. What the Governor cannot do is order an agency to stop enforcing a regulation that is in effect. To change or repeal a regulation, the executive branch must follow the APA's withdrawal-and-repeal procedures (§ 2.2-4016). Once a regulation has taken effect, repeal "may be repealed after its effective date only in accordance with the provisions of this chapter that govern the adoption of regulations." Alternatively, the General Assembly can amend the underlying statute, or a court can strike the regulation down.

The opinion also clarified the role of guidance documents under § 2.2-4008: a guidance document "as properly understood, only may explain or amplify the relevant regulation or statute." Suspending a regulation is neither explanation nor amplification; it is subversion. A "guidance document" therefore cannot do the work of suspension.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The structural conclusions are anchored in the constitutional text (Article I, § 5; Article I, § 7; Article III, § 1; Article V, § 7), which has not been amended since this opinion. The Administrative Process Act sections cited here remain in place but should be verified for amendments. The political context the opinion was reacting to (regulation of abortion facilities under Va. Code § 32.1-127) has shifted considerably as a result of the 2014 General Assembly's response, later regulatory changes, Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), and subsequent state law developments. Anyone analyzing executive authority over a specific regulation today should look at the current APA framework and the current law on the substantive subject.

Common questions

Can the Governor issue an executive order on any subject?
Yes, within limits. Executive orders rest on the Governor's general reservoir of chief-executive powers under Article V, § 1 and the take care clause in Article V, § 7. The Virginia Supreme Court in Lewis v. Whittle (1883) noted that the Governor "has and can rightly exercise no power except such as may be bestowed upon him by the constitution and the laws." Orders that exercise legislative power or violate the Constitution are void.

What if the regulation hasn't taken effect yet?
Different rule. Under Va. Code § 2.2-4016, an agency may withdraw a regulation any time before its effective date. The withdrawal authority belongs to the agency itself in that pre-effective window. After the effective date, the regulation can be repealed only through the full APA process.

Is a "guidance document" a workaround?
No. The opinion read § 2.2-4008 to limit guidance documents to explanation or amplification of a regulation or statute. A guidance document that suspends a regulation is not explanation; it is contradiction, and the AG concluded a guidance document cannot lawfully effect a suspension.

What can the General Assembly do if it disagrees with a regulation?
Amend or repeal the underlying authorizing statute, or pass a law that constrains or invalidates the regulation. The Joint Commission on Administrative Rules has historically had a review role as well (under §§ 2.2-4014 and 30-73.01).

What can the Governor lawfully do to change a regulation's effect?
Direct the relevant agency to begin the APA repeal or amendment process. Appoint new agency leadership through the boards or department heads. Issue guidance that interprets but does not contradict the regulation. Submit recommended legislation to the General Assembly to change the underlying statute.

Does the take care clause ever allow non-enforcement?
The opinion did not address selective non-enforcement (e.g., setting prosecutorial priorities or declining to bring specific cases). Its conclusion was about a categorical, unilateral suspension of the operation of a regulation. Selective enforcement decisions in individual cases raise different and more complex constitutional and prudential questions.

Where does the "suspending power" history come from?
The English Bill of Rights of 1689, enacted after the forced abdication of James II. The first declaration of that statute was "that the pretended Power of Suspending of Laws, or the Execution of Laws, by regal Authority, without Consent of Parliament, is illegal." Virginia incorporated the same prohibition in § 7 of the 1776 Virginia Declaration of Rights, and that provision has appeared in every Virginia Constitution since. The federal Constitution carries the prohibition implicitly through the take care clause; Virginia carries it both implicitly and explicitly.

What about emergency situations?
The opinion did not address emergencies or the separate statutory framework for the Governor's emergency powers (e.g., the Emergency Services and Disaster Law, then at Va. Code §§ 44-146.13 et seq., now §§ 44-146.13 et seq. in Title 44). Emergency suspensions of regulations typically operate under specific statutory authorization, which is different from the unilateral, non-emergency suspension Delegate Marshall asked about.

Background and statutory framework

• Va. Const. art. V, § 1: vests the chief executive power in the Governor.
• Va. Const. art. V, § 7: requires the Governor to take care that the laws be faithfully executed.
• Va. Const. art. V, § 8: gives the Governor authority to require reports from agency officers and to inspect agency records.
• Va. Const. art. V, § 10: vests in the Governor the appointment of agency heads, subject to legislative confirmation.
• Va. Const. art. I, § 5: separation of powers among the three departments.
• Va. Const. art. I, § 7: explicit prohibition on suspending laws or the execution of laws without legislative consent.
• Va. Const. art. III, § 1: separation of powers and authorization for the General Assembly to create administrative agencies.
• Va. Const. art. IV, § 1: vests legislative power in the General Assembly.
• Va. Code §§ 2.2-4000 to 2.2-4031: Administrative Process Act.
• Va. Code § 2.2-4001: defines "regulation" as a statement of general application having the force of law.
• Va. Code § 2.2-4008: guidance documents.
• Va. Code § 2.2-4013: Governor's review role in adopted regulations.
• Va. Code § 2.2-4016: governs withdrawal and repeal of regulations.
• Va. Code § 2.2-107: gubernatorial appointment authority over agency heads.

The interpretive moves:

• A regulation, validly promulgated, has the force of law.
• A unilateral suspension of law is the historic "suspending power" abolished by the English Bill of Rights of 1689 and forbidden by Article I, § 7 of Virginia's Constitution.
• The take care clause requires faithful execution, which is incompatible with suspending the operation of a duly enacted rule.
• Regulations are an exercise of delegated legislative power; unilateral suspension is therefore also a separation-of-powers violation.

Citations

• Va. Const. art. I, § 5
• Va. Const. art. I, § 7
• Va. Const. art. III, § 1
• Va. Const. art. IV, § 1
• Va. Const. art. V, § 1
• Va. Const. art. V, § 7
• Va. Const. art. V, § 8
• Va. Const. art. V, § 10
• Va. Code §§ 2.2-4000 through 2.2-4031
• Va. Code § 2.2-4001
• Va. Code § 2.2-4008
• Va. Code § 2.2-4013
• Va. Code § 2.2-4016
• Va. Code § 2.2-107
• Lewis v. Whittle, 77 Va. 415 (1883)
• Bell v. Dorey Elec. Co., 248 Va. 378, 448 S.E.2d 622 (1994)
• Manassas Autocars, Inc. v. Couch, 274 Va. 82, 645 S.E.2d 443 (2007)
• 1945-46 Op. Va. Att'y Gen. 144
• 1983-84 Op. Va. Att'y Gen. 180
• Robert J. Reinstein, The Limits of Executive Power, 59 Am. U. L. Rev. 259 (2009)
• Peter M. Shane, Restoring Faith in Government, 11 Yale L. & Pol'y Rev. 361 (1993)
• A.E. Dick Howard, Commentaries on the Constitution of Virginia (1974)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2014/13-109_Marshall.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

January 3, 2014

The Honorable Robert G. Marshall
Member, House of Delegates
Post Office Box 406
Richmond, Virginia 23218

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Dear Delegate Marshall:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire whether the Governor has the power to issue a policy directive to suspend a regulation that was properly adopted pursuant to a statutory mandate.

Response

It is my opinion that, while the Governor has a significant role to play in the formulation of regulations promulgated by executive branch agencies, the Virginia Constitution prohibits the Governor from unilaterally suspending the operation of regulations that have the force of law.[1]

Background

The legislative power of the Commonwealth is and has been vested in the General Assembly.[2] Nevertheless, as the scope and reach of government increased, some thought it necessary to create administrative agencies (sometimes referred to as "executive branch agencies") to promulgate regulations to provide for specific applications of the broader policy concerns addressed in legislation passed by the General Assembly. The authority for the existence of such agencies is found in Article III, § 1 of the Virginia Constitution,[3] which provides in pertinent part that "administrative agencies may be created by the General Assembly with such authority and duties as the General Assembly may prescribe."

The grant of power to administrative agencies is limited. "[D]elegations of legislative power are valid only if they establish specific policies and fix definite standards to guide the official, agency, or board in the exercise of the power. Delegations of legislative power that lack such policies and standards are unconstitutional and void."[4] Furthermore, administrative agencies are often required to adopt regulations pursuant to the Virginia Administrative Process Act ("APA").[5] Pursuant to the APA, agency regulations are, prior to becoming effective, subject to public notice, and potentially, public hearings,[6] subject to public comment and, potentially, the taking of evidence,[7] subject to review by both the Attorney General and the Governor,[8] and subject to legislative review.[9] If an agency enacts a regulation consistent with its statutory charge[10] and that regulation has gone through the required regulatory processes for promulgation, it has the force of law.[11]

Applicable Law and Discussion

Before addressing the specific issue of whether the Governor has the authority to suspend a validly adopted regulation, it is important to recognize that the Governor has a significant ability to affect the issuance of regulations prospectively. As noted above, he has a statutory role in the adoption of regulations under the APA.[12] Additionally, the Governor affects the composition of administrative agencies through his appointments of the heads of administrative agencies[13] and their respective boards.[14] Furthermore, the Virginia Constitution explicitly authorizes the Governor to require certain officers and employees within state agencies to provide him with reports of the agency's activities and to allow him to inspect the agencies' financial and other records.[15]

Another method governors have employed to influence the operations of state government is through the issuance of written directions. Whether called executive orders, executive directives, or guidance documents, these directions have been used by governors to have administrative agencies pursue the governor's policy objectives. Before turning to whether the Governor unilaterally may issue such directions to suspend a validly adopted regulation, it is helpful to review the Governor's general authority to issue such orders, directives, or guidance documents.

The Supreme Court of Virginia has noted that "[u]nder our system of government, the governor has and can rightly exercise no power except such as may be bestowed upon him by the constitution and the laws."[16] No provisions of the Constitution of Virginia or any statute explicitly grant to the Governor the authority to issue executive orders. Governors historically have issued executive orders based upon the authority inherent in the constitutional duty of the Governor to "take care that the laws be faithfully executed."[17] Prior opinions of the Attorney General recognize that the Constitution grants to the Governor a general reservoir of powers as chief executive of the Commonwealth.[18] Thus, the authority of the Governor to issue executive orders is well established in the law and history of the Commonwealth.

The scope of such authority, however, is limited. The Governor may not use an executive order (or any other means) to exercise legislative power, which is vested solely in the General Assembly.[19] Furthermore, the Governor may not issue executive orders or take other action that is contrary to express provisions of the Virginia Constitution.[20] Thus, if an executive order or other written direction amounts to an exercise of legislative power or violates a provision of the Virginia Constitution, the Governor is without power to issue it and the written direction necessarily is void.

Applying this legal background to your specific inquiry, it becomes clear that the Governor may not unilaterally (whether by executive order, executive directive or guidance opinion[21]) suspend the operation of a validly enacted regulation. As explained below, any attempt to do so would represent a violation of Article V, § 7, Article I, § 7, and the separation of powers provisions of the Virginia Constitution.

Prohibiting the executive from suspending duly enacted laws has long been part of Virginia's constitutional history. The drafters of both the Virginia Constitution and the United States Constitution were very familiar with claims that the executive had the authority to suspend or dispense with duly enacted laws, and both sets of framers sought to borrow from the English experience and prevent the executive from claiming such a power in the New World. As one scholar has noted regarding the drafting of the United States Constitution,

In 1689, following the forced abdication of James II, Parliament enacted the English Bill of Rights. The first declaration of that momentous statute was "that the pretended Power of Suspending of Laws, or the Execution of Laws, by regal Authority, without Consent of Parliament, is illegal." The royal dispensing prerogative was also declared illegal.

The English Bill of Rights became a template for American constitution drafting. Virtually every secular provision in that statute was incorporated into the U.S. Constitution. The prohibition on the suspending and dispensing powers was encoded in Article II's requirement that the President must "take Care that the Laws be faithfully executed." Thus, these rejected royal prerogatives were denied to the President.[22]

The drafters of Virginia's Constitution adopted nearly identical language, seeking to effectuate the same prohibition.[23] Article V, § 7 of the Virginia Constitution provides, in pertinent part, that "[t]he Governor shall take care that the laws be faithfully executed."[24]

Validly implemented regulations carry the force of law;[25] thus, it should be self-evident that unilaterally issuing a directive that suspends or ignores such a regulation is inconsistent with the Governor's duty to "take care that the laws be faithfully executed." To conclude otherwise would grant the Governor a suspending power that has been denied to the English King since at least 1689 and would render the "take care" clause of the Virginia Constitution a mere nullity. Simply stated, the Virginia Constitution's "take care" clause prohibits the Governor from issuing instructions (whether by executive order, executive directive or guidance opinion) that a valid regulation be suspended or ignored.

While the framers of the federal constitution apparently believed that the federal "take care" clause was sufficient to make clear that the executive could not suspend validly enacted laws, Virginia went one step further. Article I, § 7 of the Virginia Constitution expressly provides "[t]hat all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised."[26] Thus, the prohibition that is implicit in Article V, § 7's "take care" clause is made explicit by Article I, § 7: the Governor may not unilaterally direct, by any means, that a validly adopted regulation that has the force of law be suspended or ignored.

Irrespective of the prohibitions found in Article V, § 7 and Article I, § 7, the Virginia Constitution nonetheless would prohibit the Governor from unilaterally suspending a validly adopted regulation carrying the force of law. Specifically, such action would violate the separation of powers provisions found in Article I, § 5 ("That the legislative, executive, and judicial departments of the Commonwealth should be separate and distinct ....") and Article III, § 1 ("The legislative, executive, and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others, nor any person exercise the power of more than one of them at the same time ....").[27]

It must be remembered that, when adopting a regulation, an administrative agency is not engaged in an executive function, but rather, it is exercising legislative authority that has been delegated to it by the General Assembly. As noted above, the authority for the existence of such agencies is found in Article III, § 1 of the Virginia Constitution, which provides in pertinent part that "administrative agencies may be created by the General Assembly with such authority and duties as the General Assembly may prescribe." Because administrative agencies are exercising delegated legislative authority, a unilateral attempt[28] by the Governor to suspend a validly enacted regulation is as much a violation of the separation of powers as if the Governor sought to suspend the operation of a Virginia statute. It is simply beyond a Governor's power to do so, and any such attempt is void.

This conclusion is consistent with the APA's provisions regarding withdrawal of regulations. Section 2.2-4016 provides that

[n]othing in this chapter shall prevent any agency from withdrawing any regulation at any time prior to the effective date of that regulation. A regulation may be repealed after its effective date only in accordance with the provisions of this chapter that govern the adoption of regulations.

Thus, for regulations promulgated under the APA, it is clear that the executive branch (in this case the relevant agency itself) has the ability to dispense with a regulation at any time prior to its effective date; however, once it becomes effective, the executive no longer may dispense with the regulation unilaterally. Rather, the regulation can be changed or suspended only by going through the full APA process, as a result of a change in the authorizing statute being passed by the General Assembly and becoming law, or by order of a court of competent jurisdiction. Thus, a guidance opinion from the Governor is not legally sufficient to effectuate a change in or suspension of a validly enacted regulation.

Conclusion

Accordingly, it is my opinion that, while a Governor has a significant role to play in the formulation of regulations promulgated by executive branch agencies, the Virginia Constitution prohibits a Governor from unilaterally suspending the operation of regulations that have the force of law.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General

[1] Your inquiry is stated in general terms; however, you then specifically reference a statement made by the Governor-elect, when he was a candidate, about regulations regarding the treatment of abortion facilities as hospitals. The same conclusion results regardless of the particular subject matter.

[2] Va. Const. art. IV, § 1.

[3] Article III, § 1 also is one of the two provisions of the Virginia Constitution that mandates the separation of powers among the three branches of government. The dispensation for the creation of administrative agencies is the limited "exception to the basic principle" of separation of powers. 1 A.E. Dick Howard, Commentaries on the Constitution of Virginia 433 (1974).

[4] Bell v. Dorey Elec. Co., 248 Va. 378, 380, 448 S.E.2d 622, 623 (1994) (internal citation and quotation marks omitted).

[5] Va. Code Ann. §§ 2.2-4000 through 2.2-4031 (2011 & Supp. 2013).

[6] Section 2.2-4007.01 (2011).

[7] Sections 2.2-4007 (2011); 2.2-4009 (Supp. 2013).

[8] Section 2.2-4013 (2011).

[9] Section 2.2-4014 (2011).

[10] Manassas Autocars, Inc. v. Couch, 274 Va. 82, 87, 645 S.E.2d 443, 446 (2007) (citations omitted) ("Regulations ... may not conflict with the authorizing statute.").

[11] Id. at 87, 645 S.E.2d at 446 (citation omitted).

[12] Section 2.2-4013.

[13] Va. Const. art. V, § 10 ("Except as may be otherwise provided in this Constitution, the Governor shall appoint each officer serving as the head of an administrative department or division of the executive branch of the government, subject to such confirmation as the General Assembly may prescribe. Each officer appointed by the Governor pursuant to this section shall have such professional qualifications as may be prescribed by law and shall serve at the pleasure of the Governor.").

[14] Va. Code Ann. § 2.2-107 (2011).

[15] Va. Const. art. V, § 8.

[16] Lewis v. Whittle, 77 Va. 415, 420 (1883).

[17] Va. Const. art. V, § 7.

[18] See 1983-84 Op. Va. Att'y Gen. 180; 1945-46 Op. Va. Att'y Gen. 144.

[19] See Va. Const. art. I, § 5; art. III, § 1; art. IV, § 1.

[20] Lewis, 77 Va. at 420.

[21] As they pertain to regulations, "guidance documents" are referenced in § 2.2-4008 of the Code of Virginia. Nothing in § 2.2-4008 would allow for a guidance document that was inconsistent with the regulation itself or the relevant authorizing statute. Rather, guidance documents, as properly understood, only may explain or amplify the relevant regulation or statute. Definitionally, suspending the operation of a regulation would neither explain nor amplify the regulation, but rather, only subvert it.

[22] Robert J. Reinstein, The Limits of Executive Power, 59 Am. U. L. Rev. 259, 280 (2009) (footnotes omitted).

[23] Whether the nation borrowed from Virginia or whether Virginia borrowed from the nation is unclear. Virginia's "take care" clause first appears explicitly in the Virginia Constitution of 1830. Va. Const. of 1830 art. IV, § 4. At least one scholar has suggested that the federal "take care" clause "descends to us from the English Bill of Rights, via the Virginia Constitution, and was intended to forbid the executive's suspension of statutes." Peter M. Shane, Restoring Faith in Government: Presidents and the Separation of Powers, Pardons, and Prosecutors: Legal Accountability, 11 Yale L. & Pol'y Rev. 361, 393-94 (1993) (footnote omitted).

[24] As noted in note 23 supra, this language first appeared in the Virginia Constitution of 1830. It has appeared in every subsequent version of the Virginia Constitution. See Va. Const. of 1851 art. V, § 5; Va. Const. of 1864 art. V, § 5; Va. Const. of 1870 art. IV, § 5; and Va. Const. of 1902 § 73.

[25] See Manassas Autocars, Inc., 274 Va. at 87, 645 S.E.2d at 445. See also Va. Code Ann. § 2.2-4001 (2011) (defining a "regulation" under the Administrative Process Act as "any statement of general application, having the force of law, affecting the rights or conduct of any person, adopted by an agency in accordance with the authority conferred on it by applicable basic laws.").

[26] The explicit prohibition on suspending laws first appeared as § 7 of the Virginia Declaration of Rights of 1776. It has appeared in every subsequent version of the Virginia Constitution. See Va. Const. of 1830 art. I, § 7; Va. Const. of 1851 art. I, § 7; Va. Const. of 1864 art. I, § 7; Va. Const. of 1870 art. I, § 9; and Va. Const. of 1902 § 7.

[27] The separation of powers is a bedrock principle of Virginia government. The concept of separation of powers in Virginia government first appears as § 5 of the Virginia Declaration of Rights of 1776. It has continued in every Virginia Constitution since then. See Va. Const. of 1830 art. I, § 5 & art. II; Va. Const. of 1851 art. I, § 5 & art. II; Va. Const. of 1864 art. I, § 5 & art. II; Va. Const. of 1870 art. I, § 7 & art. II; and Va. Const. of 1902 §§ 5 & 39.

[28] It is conceivable that there could be circumstances where a statute or regulation allows for the regulation to be suspended under certain circumstances, and thus, such suspension would not necessarily violate the separation of powers. You do not inquire about such a scenario, and a review of all of the specific facts and circumstances would be necessary to determine if such a scenario violated some portion of the Virginia Constitution. Accordingly, such inquiry is beyond the scope of this opinion, and I do not address it in the abstract here.