Can a Virginia Governor unilaterally suspend, delay, or alter the Commonwealth's tax laws without the General Assembly approving it?

Subject

The power to amend or alter tax laws is vested in the General Assembly by the Constitution of Virginia, and absent any such authority granted by the General Assembly, the Governor may not suspend, delay, or otherwise alter those laws without violating the separation of powers and usurping the authority of the legislature.

Plain-English summary

Senator Janet Howell asked the AG a fundamental separation-of-powers question: can the Governor of Virginia, acting alone, change the Commonwealth's tax laws? The answer is no.

The Virginia Constitution puts taxing power in the General Assembly. Article I, § 5 and Article II, § 1 both declare the legislative, executive, and judicial departments separate and distinct. Article I, § 7 says that all power of suspending laws "without consent of the representatives of the people" is "injurious to their rights, and ought not to be exercised." The Governor's role under Article V, § 7 is to enforce duly enacted laws.

The AG's opinion makes a few moves:

• The taxing power is constitutionally legislative. Marshall v. N. Va. Transp. Auth., 275 Va. 419, 427 (2008), and a long line of cases trace this back to the founding.
• The Governor doesn't possess taxing power. The Governor enforces tax laws but cannot suspend, delay, or alter them, unless the General Assembly has expressly authorized that delay or suspension by statute or by a law's enactment clause.
• The Virginia Emergency Services and Disaster Law (§ 44-146.14) gives the Governor authority to issue Executive Orders in emergencies, but whether any particular order is an appropriate exercise depends on the scope of the order and the facts. An executive order that effectively exercises legislative power or violates the Constitution is void.

What this means for you

For the Governor and the Governor's staff

The opinion holds that the Governor may not suspend, delay, or alter Virginia tax laws by executive order unless the General Assembly has granted that authority by statute or a law's enactment clause, and that emergency powers under § 44-146.14 do not supply a general power to do so; whether a particular order is an appropriate exercise depends on its scope and the facts.

For state legislators considering tax legislation

The opinion holds that the taxing power is vested in the General Assembly, and that the Governor has authority to delay or suspend enforcement of a tax law only where the legislature grants it by statute or by the law's enactment clause. Absent such a grant, the Governor has none.

For Virginia taxpayers and tax professionals

The opinion holds that, absent specific authorization from the General Assembly, an executive order purporting to suspend, delay, or alter a tax obligation exercises legislative power the Governor does not possess and is void, so the underlying statute controls.

For the Department of Taxation

The opinion holds that the authority to suspend or delay a tax law rests with the General Assembly, so an executive order altering a tax obligation is valid only where the legislature has authorized the suspension or delay.

For constitutional law researchers

The opinion restates Virginia's separation-of-powers framework as applied to taxation: Art. I, §§ 5 and 7 and Art. II, § 1 keep legislative power, including the taxing power, with the General Assembly, while Art. V, § 7 limits the Governor to enforcing duly enacted laws.

Common questions

Where does the taxing power sit in Virginia government?
In the General Assembly. The Virginia Supreme Court has called this an inherent legislative power that the Constitution vests in the legislature (Marshall, 275 Va. at 427).

Can the Governor lower taxes by executive order during an emergency?
No, not unilaterally. The Governor enforces tax laws. Without statutory authorization, executive orders cannot reduce or suspend taxes.

What about during the COVID-19 pandemic?
The Governor exercised emergency powers under § 44-146.14 to address aspects of pandemic response. But the AG warned in a 2020 opinion (addressing eviction protections) that whether any specific executive order is appropriate "depends on the scope of the executive order and the facts and circumstances." An emergency declaration does not transfer the taxing power.

Can the General Assembly authorize the Governor to delay tax payments in emergencies?
Yes. The General Assembly can delegate that authority by statute or include it in a law's enactment clause. The 2014 AG opinion (2014 Op. Va. Att'y Gen. 78) confirmed the Governor "must enforce valid, duly enacted laws unless the power to delay or suspend enforcement is granted by statute or by the law's enactment clause."

Why is this principle written into the Constitution multiple times?
Separation of powers appears in Va. Const. art. I, § 5 (declaration of rights) and art. II, § 1 (structural provision). Article I, § 7 specifically forbids the suspension of laws without legislative consent. The redundancy reflects how seriously Virginia's constitutional tradition takes the principle.

Is the AG's opinion binding?
No. AG opinions are persuasive but not binding. But the constitutional grounding here is solid, and a Virginia court would likely reach the same conclusion.

Background and statutory framework

The Virginia Constitution gives the General Assembly the legislative power. Two provisions formalize separation of powers: Art. I, § 5 ("That the legislative, executive, and judicial departments of the Commonwealth should be separate and distinct") and Art. II, § 1 ("The legislative, executive, and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others"). Both have roots going back to the 1776 Declaration of Rights and have appeared in every Virginia Constitution since.

Article I, § 7 has a specific anti-suspension provision: "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." That language traces from the 17th-century English Bill of Rights.

Marshall v. N. Va. Transp. Auth., 275 Va. 419, 427 (2008), is the centerpiece authority for the proposition that taxing power is exclusively legislative: "the power of a government to tax its people and their property is essential to government's very existence. . . . This power to tax, which is inherent in every sovereign state government, is a legislative power that the Constitution [of Virginia] vests in the General Assembly."

Article V, § 7 makes the Governor the executive: he must enforce duly enacted laws. Section 44-146.14 lets the Governor issue Executive Orders in emergencies, but as a 2014 AG opinion put it, where an executive order "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 order is necessarily void."

Citations

• Va. Code § 2.2-505 (AG advisory opinions)
• Va. Code § 44-146.14 (Virginia Emergency Services and Disaster Law)
• Va. Const. art. I, § 5 (separation of powers)
• Va. Const. art. I, § 7 (no suspension of laws without legislative consent)
• Va. Const. art. II, § 1 (separation of powers, structural)
• Va. Const. art. V, § 7 (Governor's duty to enforce laws)
• Gray v. Virginia Sec'y of Transp., 276 Va. 93 (2008)
• Marshall v. N. Va. Transp. Auth., 275 Va. 419 (2008)
• Southern Ry. Co. v. Commonwealth, 211 Va. 210 (1970)
• Chesapeake & Potomac Tel. Co. v. City of Newport News, 196 Va. 627 (1955)
• City of Fredericksburg v. Sanitary Grocery Co., 168 Va. 57 (1937)
• Vaughan v. City of Richmond, 165 Va. 145 (1935)
• City of Norfolk v. Chamberlain, 89 Va. 196 (1892)
• Town of Danville v. Shelton, 76 Va. 325 (1882)
• Newport News v. Elizabeth City County, 189 Va. 825 (1949)
• 2014 Op. Va. Att'y Gen. 59
• 2014 Op. Va. Att'y Gen. 78
• 2020 Op. Va. Att'y Gen. 31

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2021/21-087-Howell-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA

Office of the Attorney General

Mark R. Herring
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120

November 18, 2021

The Honorable Janet D. Howell
Member, Senate of Virginia
Post Office Box 2608
Reston, Virginia 20195-0608

Dear Senator Howell:

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 ask whether a Virginia Governor may unilaterally alter taxes without the approval of the General Assembly.

Applicable Law and Discussion

Article I, Section 5 of the Constitution of Virginia provides, in relevant part: "That the legislative, executive, and judicial departments of the Commonwealth should be separate and distinct." As Attorney General Cuccinelli noted in a previous opinion of this Office:

[t]he separation of powers is a bedrock principle of Virginia government. It is so significant that it appears in two separate provisions of the current Virginia Constitution. See VA. Const. art. I, § 5 ("That the legislative, executive, and judicial departments of the Commonwealth should be separate and distinct . . . .") and VA. CONST. art. II, § 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 . . . ."). 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.

The Supreme Court of Virginia has "long recognized the principle that the power of a government to tax its people and their property is essential to government's very existence." "This power to tax, which is inherent in every sovereign state government, is a legislative power that the Constitution [of Virginia] vests in the General Assembly." Statutes, including those that impose taxes, are presumed constitutional. "The wisdom and propriety of [] statute[s] come within the province of the legislature."

The Governor possesses no constitutional power to tax the people of the Commonwealth. Instead, the Governor "must enforce valid, duly enacted laws unless the power to delay or suspend enforcement is granted by statute or by the law's enactment clause." Further, 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."

I am mindful that the Governor has the authority to issue Executive Orders in emergencies under the provisions of the Virginia Emergency Services and Disaster Law of 2000. VA. CODE ANN. § 44-146.14(a). However, as discussed in a 2020 opinion of this office, "[w]hether any particular executive order is an appropriate exercise of emergency power depends on the scope of the executive order and the facts and circumstances." Similarly, Attorney General Cuccinelli previously concluded that if a Governor uses an Executive Order to effectuate what "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 order is necessarily void."

Conclusion

Accordingly, it is my opinion that the power to amend or alter tax laws is vested in the General Assembly by the Constitution of Virginia, and that absent any such authority granted by the General Assembly, the Governor may not suspend, delay, or otherwise alter those laws without violating the separation of powers and usurping the authority of the legislature.

With kindest regards, I am,
Very truly yours,

Mark R. Herring
Attorney General