Can the Governor of Virginia simply refuse to enforce a law that was passed by the General Assembly and signed into law?

Plain-English summary

Delegates Lingamfelter and Gilbert filed this request as a state-level counterpart to a national debate over executive non-enforcement. Their question had two halves. First, can the Governor of Virginia refuse to implement or follow a duly enacted Virginia law? Second, can the President of the United States refuse to implement the Affordable Care Act?

The AG answered the Virginia question and declined to answer the federal question.

On the Virginia Governor. The opinion built directly on Opinion 13-109 (issued five months earlier in response to a different delegate's question about suspending validly adopted regulations). That earlier opinion held that the Governor cannot unilaterally suspend a regulation that has the force of law, on three grounds: the take care clause (Article V, § 7), the explicit suspending-power prohibition (Article I, § 7, originating in the 1776 Declaration of Rights, itself descended from the English Bill of Rights of 1689), and the separation of powers (Article I, § 5; Article III, § 1).

The same reasoning, the AG concluded, applies "equally to the failure of the Governor to enforce, implement, or follow duly enacted statutes." Ignoring a statute or refusing to implement it has the same practical effect as a formal directive suspending its enforcement. Allowing it would "render the 'take care' clause of the Virginia Constitution a mere nullity." The fact that a regulation is an exercise of delegated legislative power, and a statute is direct legislative power, makes the case for the governor's enforcement duty even stronger for statutes than for regulations.

The opinion identified two exceptions that prove the rule:

1. Statutory authority. When the General Assembly itself grants the executive a power to delay or suspend enforcement. The opinion cited § 2.2-4014 (regulations may be objected to and, with the concurrence of the Governor, modified or suspended by certain legislative bodies) as an example.
2. Enactment-clause authority. When the legislation's own enactment clause delays the effective date or makes implementation contingent on the executive's action.

"Duly enacted" was defined to include both bills signed by the Governor and bills passed over a gubernatorial veto under Va. Const. art. V, § 6(b)(ii). The opinion assumed no constitutional infirmity in the underlying statute (if there were, that would be a separate analysis).

On the President. The AG declined to opine. The Virginia AG sometimes interprets federal law when needed to address the interplay between federal and state law, but a question purely about the President's enforcement authority would not inform any state or local decision. The AG noted three practical reasons:

1. The President's powers are governed by a complex interplay of the U.S. Constitution, federal statutes, federal common law, and opinions of the U.S. Attorney General and Office of Legal Counsel.
2. The President is not subject to or governed by opinions of the Virginia AG.
3. Such an opinion would be merely academic.

The proper authority to resolve the President's enforcement scope is "appropriate federal authorities," not the Virginia AG.

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 constitutional foundation (Article I, § 5; Article I, § 7; Article III, § 1; Article V, § 7) is unchanged. The Administrative Process Act provisions cited here (§ 2.2-4014; § 30-73.1) remain in place but should be verified for amendments. The political context (Obama-era debates about executive enforcement of immigration and healthcare law) has shifted, but the structural answer about the Virginia Governor's duty has not.

Common questions

Are there any circumstances when the Governor can decline to enforce a law?
Yes, but they are narrow:

• When a statute itself grants the executive delay or suspension authority (e.g., a phase-in date that the executive can adjust).
• When an enactment clause makes the law contingent on executive findings or action.
• When a court has stayed enforcement or held the law unconstitutional.
• When the law itself is constitutionally infirm; the opinion notes this would require a separate analysis.

What about prosecutorial discretion or enforcement priorities?
The opinion did not directly address the difference between systematic non-enforcement (which it forbade) and case-by-case prosecutorial decisions (which are inherent in any enforcement agency's work). The classic line is between not enforcing at all and choosing which cases to bring; the former is suspension, the latter is discretion. The boundary is contested.

What is the "enactment clause" exception?
A law passed by the General Assembly may include language delaying its effective date or making implementation contingent on an executive determination. For example, a statute might say it takes effect "on the date the Governor certifies that the implementing regulations are complete." In those situations, the Governor's delay is authorized by the statute itself.

Why did the AG decline to opine on the President?
Three reasons: federal law governs the President's authority, the President is not subject to Virginia AG opinions, and an opinion would be academic. The AG saved the Office from a political question with no Virginia-law payoff.

What is the "take care" clause?
Article V, § 7 of the Virginia Constitution: "The Governor shall take care that the laws be faithfully executed." This duty is parallel to the President's take-care duty under Article II of the U.S. Constitution. Both descend from the English Bill of Rights of 1689, which abolished the royal "suspending" and "dispensing" powers.

What if the Governor thinks a law is unconstitutional?
The Virginia Supreme Court is the arbiter of state constitutional questions; federal courts are the arbiter of federal constitutional questions. The opinion does not directly address what the Governor should do with an enforcement obligation he believes is unconstitutional, but the structural answer parallels the Clerk's situation in Opinion 14-008: bring or support a court challenge rather than unilaterally refusing to enforce.

Can the General Assembly force the Governor to enforce a law?
The General Assembly can pass legislation, appropriate funds for enforcement, conduct oversight, and (as the opinion mentioned) modify or suspend certain regulations with the Governor's concurrence under § 2.2-4014. Direct judicial enforcement against the Governor's office for failure to enforce a statute is procedurally complex (mandamus is the traditional tool) and would typically arise in a suit by a private party affected by non-enforcement.

Does this opinion bind future Governors?
AG opinions are persuasive authority but not binding on courts. They are, however, treated with respect by the executive branch they govern. A future Governor or AG could disagree, though the structural arguments here (constitutional text, history of the suspending-power prohibition, separation of powers) are well-grounded in Virginia constitutional law.

Background and statutory framework

• Va. Const. art. IV, § 1: legislative power vested in the General Assembly.
• Va. Const. art. V, § 6(b)(ii): General Assembly may override a Governor's veto.
• Va. Const. art. V, § 7: take care clause.
• Va. Const. art. I, § 5; art. III, § 1: separation of powers.
• Va. Const. art. I, § 7: explicit suspending-power prohibition.
• Va. Code § 2.2-4014: allows certain standing committees or the Joint Commission on Administrative Rules, with the Governor's concurrence, to object to or modify or suspend regulations.
• Va. Code § 30-73.1: creates the Joint Commission on Administrative Rules.

The interpretive moves:

• The constitutional duty to enforce duly enacted laws is parallel to (and even stronger than) the duty not to suspend duly adopted regulations addressed in Opinion 13-109.
• Failure to implement has the same practical effect as a formal suspension.
• Statutory or enactment-clause authority is the narrow path that permits delay.
• The President's enforcement authority is outside the Virginia AG's institutional role.

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, § 6(b)(ii)
• Va. Const. art. V, § 7
• Va. Code § 2.2-505
• Va. Code § 2.2-4014
• Va. Code § 30-73.1
• 2014 Op. Va. Att'y Gen. No. 13-109 (suspending validly adopted regulations)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2014/14-009_LingamfelterGilbert.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Richmond 23219
May 30, 2014

900 East Main Street
Richmond, Virginia 23219
804-786-2071
804-371-8946 TDD

The Honorable L. Scott Lingamfelter
Member, House of Delegates
Post Office Box 7175
Woodbridge, Virginia 22195

The Honorable C. Todd Gilbert
Member, House of Delegates
Post Office Box 309
Woodstock, Virginia 22664

Dear Delegates Lingamfelter and Gilbert:

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

Issues Presented

You ask whether the Governor of Virginia has authority to fail to implement or to follow a valid law that has been passed by the General Assembly and signed into law by the Governor in the absence of the General Assembly granting that authority either by statute or by the law's enactment clause. You also ask whether the President of the United States has authority not to implement the Affordable Care Act.

Response

It is my opinion that the Governor must enforce valid, duly enacted laws unless the power to delay or suspend enforcement is granted by statute[1] or by the law's enactment clause.[2] Based on longstanding precedent of this Office, I also conclude that a question related to the scope of power that can be exercised by the President of the United States with regard to enforcing a particular federal law is not an appropriate subject for an official Opinion of this Office.

Applicable Law and Discussion

I. General Duty Of Governor To Enforce Laws

Your first inquiry implicates several provisions of the Constitution of Virginia. First, Article IV, § 1 vests the legislative power of the Commonwealth in the General Assembly.[3] Article V, § 7 provides, in pertinent part, that "[t]he Governor shall take care that the laws be faithfully executed."[4] This provision is commonly known as the "take care" clause.[5] Our Constitution further expressly requires the separation of powers: Article I, § 5 provides that "the legislative, executive, and judicial departments of the Commonwealth should be separate and distinct ...[,]" and Article III, § 1 provides that "[t]he 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 ...."[6] Finally, Article I, § 7 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."[7]

A recent Opinion of this Office discusses the history and interplay of these constitutional provisions.[8] Although the Opinion dealt specifically with the application of these provisions to the Governor's power, through formal action, to suspend the enforcement of regulations having the force of law,[9] the reasoning of the Opinion applies equally to the failure of the Governor to enforce, implement, or follow duly enacted statutes. Indeed, as the Opinion explains, "[p]rohibiting the executive from suspending duly enacted laws has long been part of Virginia's constitutional history."[10]

Ignoring or failing to implement a duly adopted regulation or statute has the same practical effect as actively issuing a directive suspending the enforcement of such law. To conclude otherwise, in a fashion analogous to permitting the Governor to issue an order suspending or ignoring a regulation, "would render the 'take care' clause of the Virginia Constitution a mere nullity."[11] Further, in concluding that the Governor may not unilaterally suspend a validly promulgated regulation, the previous Opinion noted that such action "is as much a violation of the separation of powers as if the Governor sought to suspend the operation of a Virginia statute,"[12] the action about which you inquire.

II. Duty Of President To Enforce Laws

Your second inquiry is whether the President of the United States may fail to implement or follow a specific law, the Affordable Care Act, that has been passed by Congress and that he has signed into law. Although this Office does from time to time interpret federal law, that is done in order to address the interplay between specific provisions of federal law and the laws of the Commonwealth. Such opinions, when rendered, help to inform state or local decisions. Questions related to the President's inherent, implied, or express authority are governed by a complex interplay of the United States Constitution and various federal laws, including federal legislative history, federal common law, and possibly opinions of the United States Attorney General and the Office of Legal Counsel. Finally, it is important to note a practical consideration: the President is not subject to or guided or governed by Opinions of this Office, and thus any Opinion our office might render on this subject would be merely academic. It would not have any practical impact on either the President's conduct or state or local decisions. In these circumstances, the question of the President's authority not to implement a particular law should be resolved by appropriate federal authorities, not by this Office. For those reasons, I respectfully decline to offer an Opinion of the Office on the matter.

Conclusion

Accordingly, it is my opinion that the Governor must enforce duly enacted valid laws, unless the power to delay or suspend enforcement is granted by statute or by the law's enactment clause. It is further my opinion that a question related to the President of the United States declining to implement a particular federal law is not an appropriate subject for an official Opinion of this Office.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] One example of a statute granting modification and suspension authority is Va. Code Ann. § 2.2-4014 (2011), which allows the relevant standing committees of the General Assembly, or the Joint Commission on Administrative Rules, which is created by Va. Code Ann. § 30-73.1 (2011), to object to regulations or, with the concurrence of the Governor, to modify or suspend regulations.

[2] Herein, the phrase "duly enacted" means passed by the General Assembly and signed by the Governor, and it also means, in the case of a bill vetoed by the Governor, where the General Assembly has voted to override the veto pursuant to Va. Const. art. V, § 6(b)(ii). This Opinion assumes that the laws at issue do not have any constitutional infirmity. If a constitutional infirmity in a particular law does exist, a separate legal analysis would be necessary. Such an analysis is beyond the scope of this Opinion.

[3] Va. Const. art. IV, § 1.

[4] Va. Const. art. V, § 7.

[5] Virginia's "take care" clause first appears explicitly in the Virginia Constitution of 1830. Va. Const. of 1830 art. IV, § 4. 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.

[6] Va. Const. art. I, § 5 and art. III, § 1. 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.

[7] Va. Const. art. I, § 7. 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.

[8] See 2014 Op. Va. Att'y Gen. No. 13-109, available via link at http://www.ag.virginia.gov/Opinions%20and%20Legal%20Resources/Opinions/2014opns/Jan14opndx.html.

[9] The explicit question addressed in the prior Opinion was "whether the Governor has the power to issue a policy directive to suspend a regulation that was properly adopted pursuant to a statutory mandate." Id. at 1.

[10] Id. at 3.

[11] Id. at 4.

[12] Id. at 5. The prior Opinion notes that there may be instances "where a statute ... allows for [suspension] under certain circumstances, and thus, such suspension would not necessarily violate the separation of powers[,]" id. n.28; your request, however, expressly is limited to situations in which there is no statutory allowance.