On his first day in office, Governor-elect Terry McAuliffe says he'll use his first executive order to ban discrimination in state workplaces based on sexual orientation.

The move is already drawing familiar criticism from the right. In doing this, McAuliffe is following in the footsteps of former Governor Tim Kaine, who signed the same executive order on his first day in office in 2006.

Now, heading into 2014, it looks like history may repeat itself.

Back in 2006, Delegate Bob Marshall - one of the most conservative voices in the Virginia legislature - called Kaine's executive order "unconstitutional," claiming he was trying to change public policy without approval from the General Assembly.

Then Attorney General Bob McDonnell agreed the action was unconstitutional. Now, eight years later, Delegate Marshall says McAuliffe’s plan is similarly flawed.

“He has no legal authority. This is not a good start, frankly. If Mr. McAuliffe thinks he can usurp powers of the legislature, he's courting a divorce before the honeymoon,” said Marshall.

"Clever phrases notwithstanding, there's not going to be anyone who will be able to legally challenge him on it," said Kaine. 

Kaine moved forward with the order in 2006, saying his employees will follow his rules. McAuliffe, he says, should do the same.

“I can certainly tell them I don't want you to discriminate against people as a condition of employment,” said Kaine.

But Delegate Marshall isn't buying it, and says the man hired by Virginia voters this week should tread lightly.

"Just like his friend Bill Clinton who used to say with the stroke of a pen I can do what I want. Well sorry, this is Virginia, not Washington.," said Marshall. 

The McAuliffe administration will move forward with this executive order, and Kaine says it should. But the senator also says this issue isn't something that should be left up to a governor - it should be federal law.

On Thursday, the U.S. Senate passed the Employee Non-Discrimination Act, which would protect employees from discrimination based on sexual orientation. That bill now faces an uncertain future in the House of Representatives.