Tuesday’s elections reinforced constitutional checks and balances against the Obama administration’s excesses, but not just in the most obvious way. For all the attention rightly paid to the new Senate majority, there’s another important set of newly elected officials who may soon push back against federal overreach: state attorneys general.
Unlike their federal counterpart, most state AGs are elected by the voters, not appointed by their respective governors. And on Tuesday, Republican AG candidates won 19 of 31 elections, giving them a majority of 27 state AGs to 23 for Democrats.
State law often empowers the attorney general to litigate in the name of the state and on behalf of the state’s people. And thus state AGs have led a wave of litigation against the Obama administration, challenging federal regulatory programs and other efforts that exceed the limits set by the Constitution and federal statutes. As Fred Barnes has noted in these pages (“The Last Redoubt,” July 22, 2013), “the AGs, who often attack the administration in packs, have done more than Republicans in Congress, statehouses, or anywhere else to block, cripple, undermine, or weaken Obama’s initiatives.”
The AGs’ constitutional challenges were epitomized by the coalition of 26 states that challenged the Affordable Care Act’s individual mandate in cases that culminated, to the states’ disappointment, with the Supreme Court’s 2012 decision affirming the mandate as a federal tax. Similarly, 21 AGs filed briefs in last term’s Hobby Lobby case, arguing that the federal Religious Freedom Restoration Act limited the administration’s power to require employers to pay for employees’ contraceptives.
But the states’ role in nonconstitutional cases challenging federal regulatory programs has been just as important. A coalition of states challenged the Environmental Protection Agency’s signature regulatory program, the new permitting requirements for greenhouse gas emissions; they ultimately succeeded this year in convincing the Supreme Court to strike down the EPA program in part, with Justice Antonin Scalia writing for the Court that the EPA had violated the “core administrative-law principle that an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate.” In 2015, the Supreme Court may hear a similar challenge to the administration’s attempt to stretch the terms of the Affordable Care Act: States are challenging the administration’s attempt to subsidize health care exchanges set up by the federal government for nonparticipating states, when the plain text of the act provides that such subsidies can cover only exchanges “established by the State.”
Faced with no serious prospects for legislative achievements in the next two years, the administration has made no secret of its intention to rule unilaterally, through agency regulations and executive orders rather than legislative compromise. Fittingly, several state AGs put the administration’s regulatory agenda at the center of their campaigns.
Bill Schuette, Michigan’s incumbent AG, highlighted on his campaign website that he had “been fighting the catastrophic side effects of Obamacare in the courts every step of the way.” Oklahoma’s Scott Pruitt has been highly critical of the EPA (among other agencies), including the newly announced rules to reduce greenhouse gas emissions from existing power plants; he called President Obama’s Climate Action Plan “a plan that has no legal basis or the force of law” and “will undoubtedly lead to higher electricity rates, job losses and increased manufacturing costs as coal-fired power plants . . . are taken offline.”
Newcomers are no less critical of the administration. Arizona’s newly elected AG, Mark Brnovich, previously directed the Goldwater Institute’s Center for Constitutional Government. In September he criticized the EPA’s newest climate-change regulations for existing power plants as “an affront to the law and further illustration of the Obama administration’s contempt for its co-equal branch of government—Congress—and disdain for the very states from which the federal government derives its power.” He added that, “once elected Attorney General of Arizona, I pledge to join states in challenging the legality of these federal regulations, if they are not promptly withdrawn, or significantly revised to reflect the concerns of stakeholders.”
The most vociferous of the newly elected AGs may be Adam Laxalt, grandson of former governor and senator (and President Reagan’s unofficial “First Friend”) Paul Laxalt. In May, Politico Magazine noted that Laxalt’s campaign “constantly pound[ed] on Obamacare and federal government overreach, saying attorneys general are the last bulwarks against incursions from Washington.” Warning that “Nevadans know the ever-increasing interference out of Washington, D.C. makes it harder for the working people of Nevada and small business owners to create jobs and grow the economy,” Laxalt pledged that as AG he would “fight back against the policies that tie the hands of job creators here at home, and . . . work to defend free market principles,” from “stifling regulations coming out of the Department of the Interior to Obama-care’s healthcare mandates.” (Politico further noted that Laxalt’s rhetoric might “be problematic politics when it comes to winning an election in what is after all a purple, not a red, state”; Nevada voters evidently saw less of a problem there.)
In suits against the federal government, the states have a technical advantage over private litigants: According to the Supreme Court, state plaintiffs are “entitled to special solicitude” from courts on the question of whether they have “standing” to bring their lawsuits. This may seem like a legalistic point, but at a time when the administration has been very aggressive in disputing challengers’ legal standing to bring lawsuits, even this marginal difference could prove significant. (And ironically so, given that the Supreme Court announced this “solicitude” in Massachusetts v. EPA, the 2007 case in which Democratic AGs from a variety of states persuaded the Court to require the Bush administration to move forward on greenhouse gas regulation.)
But the states’ most important advantage is more practical: Unlike private parties, sovereign states and independently elected AGs are much less susceptible to political pressure by the administration to sign on to controversial regulatory programs. Such an approach was central to the administration’s initial formulation of climate-change regulations for auto companies, according to a House Oversight Committee report detailing the White House’s pressure on auto companies not to challenge those regulations in court.
In the long run, the Senate’s power to conduct oversight of the administration, in conjunction (finally) with the House, and to exert other gravitational pressure on the executive branch is the most powerful means for checking and balancing the administration. But in the short run, states may provide the most immediate means for restoring constitutional balance, in the courts of law and the courts of public opinion. Together, Congress and the states can provide, as Madison famously offered in Federalist 51, “a double security” for “the rights of the people”: the separation of powers at the federal level, and the division of power, politically and legally, among the federal government and the states.
Adam J. White is a lawyer in Washington, D.C. His firm has been involved in some of the litigation involving states, including the filing of briefs on behalf of states in the litigation challenging the EPA’s greenhouse gas regulations.
