A musing

[Lichtman, Steven]

I'm a bit confused about the process here (and as a Maryland resident, I've been halfway able to follow it in the Washington papers) ... can someone clarify?

We have two facts here:

(1) Attorney General Ken Cuccinelli directed a missive at Virginia universities stating that they were not allowed to have nondiscrimination policies that referred to sexual orientation; the only way they can have those policies is if the state authorizes them.

(2) Governor McDonnell then issued a ... well, what was it?  A directive?  A press release?  A Twitter? ... McDonnell issued some form of announcement that basically said that he didn't have a problem with the schools having those policies and was not going to move against them.  (Evidently, he is prioritizing his comprehensive review of Civil War history.)

So here's my question: does the Governor have the authority to countermand the AG?  Suppose Cuccinelli initiates some sort of action against UVa over its nondiscrimination policy?  Is he operating outside his authority, because McDonnell's announcement estops it?

Wondering,
Steven Lichtman
Shippensburg University



-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Ilya Somin
Sent: Monday, April 12, 2010 1:06 PM
To: Nelson Lund
Cc: CONLAWPROFS professors
Subject: Re: A musing

"Reversed" is perhaps a poor choice of words. Still, the bottom line is that the governor stated that his policy was that state agencies are not supposed to discriminate on the basis of sexual orientation in hiring, which conflicts with the AG's earlier letter.

Ilya Somin
Associate Professor of Law
Editor, Supreme Court Economic Review
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/
SSRN Page: http://ssrn.com/author=333339