Will the Law Prevail? AGs as Celebrities and Public Servants

 

Ken Cuccinelli, who served as deputy secretary of the US Department of Homeland Security after his term as Virginia’s Attorney General (2010-2014), was perhaps a prototypical Tea Party Republican politician; but his term in office did not rock the status quo. A practicing patent attorney, he came from a golden age of law practice, when the American Bar Association was supreme. Opinions differed between liberals and conservatives, but the predominant trend was to empower the people through choice and autonomy; even if it varied from scientific research and planning favored in the immediate postwar era.

In the role of Attorney General, Cuccinelli’s work was informed by strict textualism as a servant of the state, rather than a judicial philosophy informed by groups such as the Federalist Society. As Attorney General, Ken Cuccinelli deferred to the legislature to repeal the one-handgun-a-month limit. This was a bipartisan effort: federal background checks instituted in the late 1990’s had reduced the importance of this purchase limit.

The status quo had definitely changed when Cuccinelli’s successor, Mark Herring (D) refused to defend Virginias’s traditional marriage law in the lead-up to Obergefell vs Hodges (2015); this deference to the federal courts was viewed as unprecedented in Virginia’s history. In retrospect, Herring’s choice has been seen as a decisive, if polarizing moment. At the time, defense of state laws and practices in the Federal Courts was widely seen as key function of the Attorney General’s office: “my Virginia, right or wrong”. Last year, former Governor Ralph Northam (D) never clarified why he endorsed incumbent Attorney General Mark Herring’s Democratic Primary opponent, leaving Virginians to guess the reason why: was it his judicial activism? Was he not progressive enough?

As former Attorney General Mark Herring was on his way out, he left his successor Jason Miyares (R) a suit against the Town of Windsor for racially-discriminatory policing practices. This again was a first; as in the past a gentlemen’s agreement would have been achieved between local government and the state, well before the courts would become involved. 

Bipartisan consensus is harder to achieve today, and the much-feared swing-state pendulum of diametrically opposite policies had arrived in Virginia. For a short time in 2020 after universal background checks for gun purchases became law again in Virginia (under pain of felony offense), I considered opening an online clearinghouse to handle these transfers; I’m glad I didn’t, since I would’ve gone out of business. Citing their own interpretations of the Second Amendment, the vast majority of rural and suburban Commonwealths’ Attorneys (county DA’s) decided not to prosecute private transactions done in accordance with prior law.

Newly-inaugurated Attorney General Jason Miyares promised to take politics out of the office. Even if he avoids going on stage in the national Republican Party spotlight, his judicial upbringing will guide his work. Born in 1976, the Federalist Society was active on Virginia law school campuses when he arrived at the College of William and Mary. This organization is now seen as an alternative to the American Bar Association, which critics claim to have become too liberal (i.e. defense-friendly) on criminal justice issues.

As the alt-right has taken to embrace chaotic, disorderly forms of personal liberty; he stuck his stake in the position of law-and-order. To him, freedom and support of law enforcement are complementary, not contrary. During his campaign, Miyares spoke from the steps of specific courthouses where criminal assailants were given light sentences. Son of a Cuban immigrant, he contrasted the terror of Cuba’s secret police knocking at the door, with America’s love of neighborhood spirit.  

He wants to be your local prosecutor, too; and has asked the legislature for joint jurisdiction with locally-elected Commonwealths’ Attorneys. If they won’t prosecute, Jason Miyares will. The changes could take effect as soon as July. In Fairfax County, the most populous jurisdiction in Virginia, and located just outside of DC, Steve Descano was elected as a progressive Commonwealth’s Attorney in the anti-Trump wave of 2019.  His predecessor left the Democratic Party in protest. Descano has proven himself to be a hothead with a temper, easy enough to be triggered.  While there are other “woke” prosecutors in the inner suburbs, the joint jurisdiction bill was about Descano, who seems easy enough to topple in what will be a raucous Fairfax County 2023 Democratic Primary.

How does the Attorney General put politics and individual philosophy back into the box it came from? Especially when popular elections are involved, these elements become deeply engrained in the interpretation and enforcement of laws. Two suggestions emerge from my experience with the engineering profession: Reinstate the fraternity-sorority of state bar membership by emphasizing core principles of “equality and justice for all”. Matters affecting governance within a state must be handled by local stakeholders; they cannot be outsourced overseas or to BigLaw; to do otherwise is to lose nuance, continuity, and collaboration. In this way, duty to the profession of law would supersede the temporal incentives of playing politics from the Attorney General’s office.

That Revolution Talk

This year, Virginia joined a list of states whose rural leaders are talking of divorcing from their big-city counterparts. This talk of breakaway rests on perceived lack of political representation in state government, and different cultural values from the big cities. Upstate New Yorkers want to do away with New York City. Eastern parts of Washington and Oregon seek to break away from cosmopolitan and left-leaning Seattle and Portland.

More serious and detailed secession plans include an economic strategy. Some rural and libertarian-leaning Californians talk about splitting their state in two: under most proposals, Southern California would claim prosperous Silicon Valley, just south of the northerly city of San Francisco.

In Virginia’s most radical proposal, dubbed "Vexit", Arlington County and its 235,000 urbanized residents would return to neighboring District of Columbia, as it was between 1800 and 1846. Arlington residents made it clear that they did not want to join DC, giving their own stereotyped gripes of big-city problems. A trimmed Virginia would keep neighboring Fairfax County- which has more registered Democrats than Arlington- not for political reasons, but for economic reasons. Fairfax is home to Fortune 500 companies; and Dulles Airport, Virginia’s global hub with non-stop flights to Tel Aviv and Hong Kong. Without Fairfax, some commentators claimed that Virginia would become another rural, poor, Southern state.

A smaller proposal would shift several border counties across the line into West Virginia. When the mountainous state was created during the Civil War, border counties were invited to join West Virginia by referendum, and according to its governor, the invitation is still open.

Virginia’s secession talk has more gravitas in conversation than elsewhere, for the state has already split four times, and rejoined twice:

1792- Kentucky split from Virginia

1800- Alexandria, Virginia annexed to Washington, DC

1846- Alexandria returned to Virginia

1861- Virginia leaves the US for the Confederacy

            1863- West Virginia split off as a Union state

            1870- Virginia rejoins the US  

What propelled the secession talk in Virginia? Democrats introduced and voted on an “assault weapon” ban. It passed the House of Delegates, but failed by several votes in the State Senate. Apparently, this was too close of a call for gun-toting patriots. 

Got My Name Changed Back

One prominent road in Arlington, Virginia just lost its Confederate name; and no one is looking back. Transecting Crystal City, future home of Amazon’s HQ2, Jefferson Davis Highway reverted to its pre-1920’s name, Richmond Highway. Signed as US Route 1, the road still connects Washington DC to Richmond, Virginia; though parallel Interstate 95 is the preferred, and usually quicker, alternative.  Route 1 is the common, layman’s name; except for the hotels and major businesses whose stationery list the once-lengthy street address bearing the Confederate States of America president’s name.

These business owners and representatives were supportive of the change. Damnata Memoria (Banished history) aside, a succinct name like Richmond Highway works in the text-and-Siri age. “Jefferson Davis” is also a mouthful to business partners and visitors for whom English is a second language.

When, in contrast, a residential street changes names, private citizens bear the burden of informing state agencies, banks and acquaintances of their new yet geographically identical address. Such is the talk in Hollywood, Florida, where city leaders are discussing renaming two suburban streets. In recognition of this challenge, local Lee Highway and Beauregard Street; also named after prominent Confederates, will retain their nomenclature for the foreseeable future.   

Another, slightly more southern segment of US Route 1 changed names sometime earlier. It occurred as a recently-country road was being upgraded to a thoroughfare compatible for the burgeoning national security and defense industries surrounding Fort Belvoir and Quantico. Street names are dynamic in the exurbs, where old roads designed to serve agriculture (literally, Farm-to-Market roads in Texas) are repurposed for office parks and residential cul-de-sacs. Motorists most likely noticed shorter backups well before they noticed a sanitized road name.

* This is my second blog post about Crystal City. Several years ago, before Jeff Bezos put the close-in suburb on the map, I pondered new uses for the transit-accessible, yet fading, neighborhood.

The Bag Tax Game

I've been wondering, if given the two choices, which is the more economical choice for the grocery consumer: A bag tax or a sales tax on groceries? Of course, a bag tax (or bag fee, as some newspapers put it) is avoidable-- just bring your own bag. So the following exercise is for those who don't want to change their behaviors: -I had the opportunity to test this idea when I went Chinese-grocery shopping in Fairfax, Virginia with Mother. Fairfax does not have a bag tax, and the State of Virginia charges a 2.5% tax on groceries, so of the $52.00 grocery bill, $1.30 went to the Governor's pot. And we got 12 plastic bags from the trip. -In the City of Washington, DC, there is no sales tax on groceries (soft drinks aside), but grocery bags (paper and plastic) are taxed at a nickel each. So 12 bags would cost 60 cents in all. --Thus, if the choice ever came up between implementing a grocery tax and a bag tax, go with the 5-cent bag tax. However, there are some cities that have chosen to be more "progressive" with the bag tax. At 10 cents per bag, as Los Angeles charges for paper bags*, a sales tax on groceries could be a better option for those refusing to part with their disposable grocery bags. The bag tax vs. grocery tax argument is pertinent in DC because our bag tax is applied only at food sellers, many of which fall under the tax-free grocery category. Therefore, your Neiman Marcus bag is still tax-free. (The purpose of the bag tax was to cut down on plastic bag litter; and grocery bags were the main culprits). The number of plastic bags you receive from a grocer is determined by the volume of the material; or weight, if double-bagging is concerned. Thus $2 of Ramen noodles can fill one plastic bag before $200 of caviar does (yes-- I once saw $50 small jars of caviar being sold on the shelf of Safeway in Georgetown, DC). In my example, we had a "well mixed" selection of groceries. Back to Fairfax, Virginia. Currently, the State doesn't allow cities to have a bag tax. If the green light was given, politically competitive Fairfax seems unlikely to start a bag tax. However, some politicians in Arlington, VA (across the river from DC) wish to start a bag tax on top of the existing grocery tax. Some of my readers may think that I'm talking about "crazy and radical ideas". In much of the country, talk of a "bag tax" is a moot and foreign subject. ("Seriously, that's the way the coastal people do things?") So what do I do in DC? Many of the groceries in DC offer "bag credits", that is, you get a nickel off your grocery bill for each of your own bags you use (CVS, Trader Joes', Whole Foods). By reusing one bag at the grocery store, and getting one new bag, I can continue to expand my 'stack' of plastic and paper bags at no cost, same as always. And if don't need more bags, then I can enjoy that nickel off the grocery bill. Thanks for reading. *Source: http://www.huffingtonpost.com/gernot-wagner/la-plastic-bag-ban_b_1580707.html