The Last Redoubt
Republican attorneys general: the unsung heroes in challenging the Obama agenda
Jul 22, 2013, Vol. 18, No. 42 • By FRED BARNES
Can you name the attorney general of your state? I’m betting most folks can’t. There’s a reason. Campaigns for attorney general get scant media attention, causing voters to ignore down-ballot races. This is unfortunate, especially if you reside in a red state. Because in the past few years Republican attorneys general have become a growing force in national affairs. They’re not quite a conservative juggernaut, but they’re headed that way.
Practically no one has noticed the emergence of the Republican AGs. Yet they’re a scourge of President Obama. They drive the Environmental Protection Agency crazy. They’ve beaten the best lawyers at the Justice Department numerous times. “What I really do for fun is I go into the office [and] I sue the Obama administration,” Texas attorney general Greg Abbott said last year. He’s filed 30 lawsuits against the administration, 17 against EPA alone—with considerable success.
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. They failed to stop Obamacare in the Supreme Court, but won limits on Medicaid and neutralized the use of the commerce clause to expand the reach of the federal government. And there’s one case left. AG Scott Pruitt of Oklahoma has sued to prevent Obama-run health insurance exchanges from handing out subsidies. If he wins—and he has a credible case—the implementation of Obamacare will come to a halt, at least temporarily.
In effect, the administration has been put on notice: If you adopt policies inconsistent with constitutional limits and the rule of law, Republican attorneys general will come after you. “We have a network and we’re always on alert,” says Alabama AG Luther Strange. In Oklahoma, Pruitt has created a special federalism unit to track federal policies that may infringe on the authority of states. Obama “should know we’re not going to back down,” says Florida AG Pam Bondi.
The Obamacare suits are the best-known challenge to the president’s agenda, but not the only important one. The attorneys general—that’s the awkward but proper plural—blocked EPA from overreaching on water and air pollution enforcement. They forced federal mining authorities to abandon an effort to seize control of mining permits from state authorities. They intervened on behalf of Boeing to halt the National Labor Relations Board from barring the airline manufacturer from assembling 787s in South Carolina, a right-to-work state.
In all these cases, their target was the same, the Obama administration. The AGs are committed—“ruthlessly committed” is how Pruitt puts it—to obstructing the expansion of the federal government at the expense of the states. They are champions of federalism, the Tenth Amendment, states’ rights, and a defanged federal government.
Alan Wilson, South Carolina’s attorney general, draws on the 1958 movie The Blob to describe the enemy:
Republican AGs regard themselves as “the last line of defense” against Washington and its blob-like tendency to grow. It’s a conceit, but a defensible one. Thus the new book by Virginia’s hyperactive AG, Ken Cuccinelli, is titled The Last Line of Defense: The New Fight for American Liberty. Cuccinelli says the levels of resistance to a power-hungry federal government work this way: first Congress, then the president, next the “regulatory arena,” and “then it’s up to the states.” What if the state AGs fail? “Then we’re stuck,” Cuccinelli told me. In the end, says AG Sam Olens of Georgia, “it’s us or no one.”
There are currently 25 state Republican AGs, all but 3 of them (Wyoming, Alaska, New Jersey) elected. They’re independent in the sense that they don’t take orders from a governor. On Obamacare, they were united by the time the case reached the Supreme Court. With the addition of three GOP governors, “it was the first time in history you had the majority of the states in a lawsuit against the federal government,” says Hans von Spakovsky, a former Justice Department official now at the Heritage Foundation. “I don’t think there’s ever been this much cohesiveness with the Republican AGs.”
What’s striking about today’s AGs is how different they are from their Republican predecessors of less than a decade ago. They’re bolder, more conservative (or libertarian), and focused on national issues. They’re activists. They go where Republican AGs haven’t gone before. “The biggest thing in the last five years is there’s been a willingness of the states to fight the federal government,” says von Spakovsky.
Some AGs reject the activist label, one Republicans have frequently used against Democratic AGs and liberal judges. Wilson insists he’s a “reactivist.” It’s the federal government that’s activist, he says. “Everything we’ve done has been in response to the federal government.” Wilson has a point.
Activist or not, the GOP attorneys general are miles apart from Democratic AGs. For years, Democrats have specialized in consumer cases in which they extract millions from corporations and spread the money among individuals and lawyers. The most lucrative example: the hundreds of billions reaped from tobacco companies.
In 2010, Republican AGs plunged into the case against big banks that had mishandled foreclosures. When six Democratic AGs and five bank officers met in Washington with Justice Department officials, Virginia’s Cuccinelli showed up uninvited. He was the lone Republican at the meeting. He lives nearby in the Virginia suburbs.
As Cuccinelli tells it, Democrats led by Iowa AG Tom Miller were bent on squeezing as many billions out of the banks as possible. “Then I rolled a grenade onto the floor.” He declared his opposition to dunning banks for punitive damages “without any connection to the wrongdoing.” A strong letter to Miller followed, signed by Cuccinelli, Abbott, Bondi, and Wilson. The banks ultimately were fined $25 billion. That, Cuccinelli says, was “the reined in” penalty, far less than Democrats and Justice officials had sought.
For all their differences, Republican AGs have learned two valuable lessons from Democrats. The first is to have a strategic vision, a mission, a purpose, a clear sense of their role in the legal and constitutional system. Democratic AGs have had one for decades. They seek to punish corporate miscreants.
Now Republicans have a vision with a reinvigorated federalism at its center. They’re committed to limiting Washington to powers prescribed in the Constitution. They oppose overreaching by Congress, regulatory agencies, federal bureaucrats, and the executive branch. They support states’ rights and are eager to rejuvenate the Tenth Amendment as a check on the scope of federal power. They believe judicial restraint has gone too far, leaving many excesses of government in place.
Given these principles, the AGs have a lot of work to do to corral the federal government. Not every GOP attorney general may agree fully with all these principles, but most seem to. And while all 25 aren’t poised to challenge every act of federal encroachment, many are.
That leads to the second lesson. There is strength in numbers. “If you have a good issue, you should try to build a coalition,” says Leonard Leo, executive vice president of the Federalist Society. Judges take coalitions seriously. The challenge to Obamacare was a perfect coalition, with every Republican AG on board.
I divide the AGs into two clusters, the core and the inner core. Both are dedicated to the mission. When the NLRB was bearing down on Boeing, Abbott and Cuccinelli organized a coalition of 15 AGs to support Wilson, in whose state the new Boeing facility had been built. The group included Tom Horne of Arizona, John Suthers of Colorado, Lawrence Wasden of Idaho, Derek Schmidt of Kansas, Bill Schuette of Michigan, Jon Bruning of Nebraska, Marty Jackley of South Dakota, Mark Shurtleff of Utah, and Gregory Phillips of Wyoming. They belong to the core.
The inner core is distinguished by camaraderie and teamwork. They’re relative newcomers. Five of them—Wilson, Strange, Bondi, Olens, Pruitt—were elected in 2010, Cuccinelli in 2009. They have a leader and mentor, Abbott. They talk constantly. They strategize. Pointing to his cell phone, Wilson told me, “I have all their numbers in here.” They’re intensely committed to their cause. They enjoy thwarting Obama. Except for Bondi, they come from politics. She was a prosecutor.
Let’s look at the inner core, starting with Abbott. He’s easy to pick out in a crowd of AGs. He’s in a wheelchair, the victim of a freak accident at 26. While jogging, Abbott was struck by a falling oak tree and paralyzed. A year later, he passed the bar exam. He excelled as a Houston lawyer, was elected a judge, and won the AG job in 2002 in a landslide. After arguing a case before the Supreme Court, Abbott was singled out by Justice John Paul Stevens. “You don’t have to stand at the podium to make a good argument,” the justice said. Abbott had spoken from the counsel’s table. Despite the kind words, Stevens voted against Abbott’s side of the case. Abbott is revered by less experienced AGs. But he’ll soon switch to politics. With Gov. Rick Perry stepping down, Abbott, 55, is set to run for governor of Texas next year.
Abbott is blunt about his readiness for legal combat with Obama. “We’re looking to see if he exceeds his authority in ways that compromise the Constitution,” he says. As for EPA, “whenever they come up with a rule, they know there’s a lawsuit going to be filed against them.” He says the Obama administration “continues to overreach, overreach, overreach.”
His political views sound libertarian, though he doesn’t call himself one. In an interview with Texas Monthly, he said “the beast known as federal bureaucracy . . . is consuming this country and diminishing both the rights of states and individuals in a way that must be stopped.” There’s an inverse relationship between government and liberty, he told Evan Smith of Texas Tribune. “The more powerful the federal government, the less liberty individuals have,” he said. “It’s almost like a mathematical equation.”
Cuccinelli, 44, says he admires Abbott for his lack of “a club mentality,” which requires Republican AGs to maintain cordial relations with their Democratic counterparts. Cuccinelli isn’t clubby either. “I took the Abbott model and put it on steroids,” he says. In 2010, he campaigned in Iowa for AG Tom Miller’s Republican opponent and was chastised by several GOP colleagues for his breach of AG etiquette. Cuccinelli served two terms in the Virginia state senate before his election as AG. This year, he’s the GOP candidate for governor of Virginia.
He rushed to be first to challenge Obamacare in court. His solo suit beat Florida’s by 11 minutes. At the time, the consensus in the political community and among legal scholars was that suits against Obamacare were frivolous. But in his riveting new book Unprecedented: The Constitutional Challenge to Obamacare, Josh Blackman has a different take.
“Cuccinelli’s suit played a pivotal role in advancing the challenge” when federal judge Henry Hudson ruled Obamacare exceeded the commerce power of Congress, Blackman writes. “That ruling . . . changed the entire discourse surrounding the case.” Challenges to Obamacare were no longer frivolous, and, Blackman writes, “Obamacare supporters started to worry.”
Scott Pruitt, 45, was a state senator and co-owner of the Oklahoma RedHawks Triple-A baseball team before his election as AG. He took the lead in suing the federal government over the Dodd-Frank financial reform bill on the ground that it jeopardizes state pension funds. Ten AGs have joined the suit. He and Abbott succeeded in voiding a dubious EPA rule that claimed air pollution from Texas and Oklahoma was harming Granite City, Illinois.
Pruitt never refers to the Affordable Care Act as Obamacare because he doesn’t want to “politicize” an issue that, for him, is about the rule of law and the federal government’s exceeding its authority. But he takes a sharply critical view of Obama. “He’s kept his promise that Washington knows best,” Pruitt says. “He’s kept his promise that if Congress doesn’t [act], he can’t wait. The only thing wrong with that is it’s not consistent with our Constitution and our rule of law. He can’t do that. Who else but a state attorney general is in a position to respond? Who else is there but a state AG to stand up and say no?” Pruitt likes his job. He is the chairman of the Republican Attorneys General Association.
Unlike his AG peers, Luther Strange, 60, has had first-hand experience in Washington, where he spent eight years as a lobbyist for a natural gas company. He is six nine and won a scholarship to play basketball at Tulane University, where he also earned a law degree.
Running for AG in 2010, he invited Cuccinelli to campaign for him. Cuccinelli got an enthusiastic reception. After he won, Strange flew to Austin to consult Abbott on “how he set up his office.” When he heard about the Boeing case, Strange quickly contacted other AGs. “We need to weigh in on this,” he told them. “We’re right-to-work states. You don’t want the federal government telling private industry where they can locate, based on whether it’s union or non-union work.” On Obamacare, he says, “If it’s a good idea that can’t be implemented, it’s not a good idea.” Strange is the coordinating counsel for the states in the BP oil spill case.
“Don’t let the blond hair, button nose, and good looks deceive you. Pam Bondi is a dynamo, and you don’t want to be in her way with nefarious intents.” The sexist angle in the piece on Bondi in YourObserver.com covering Longboat Key, Florida, is crude, but she is a dynamo. Cuccinelli calls Bondi, 47, an “energizer bunny.”
One of her first actions as Florida AG was to replace the lawyer chosen by her predecessor, Bill McCollum, to argue the Obamacare case in the Supreme Court. She hired Paul Clement, renowned as the best advocate before the court. Before Florida governor Rick Scott had decided on expanding Medicaid, she declared he should reject the federal money to increase the program. Scott decided to take the money, only to be overruled by the legislature. Bondi felt vindicated.
Her race for attorney general was her first bid for office, and she ran into trouble in the GOP primary. Twice divorced and now engaged, she came under attack for her lifestyle. Sarah Palin came to her rescue. They’d never met, but “she reached out to me,” Bondi says. Palin’s intervention was crucial. She did robocalls in the closing days of the campaign. Bondi won narrowly. On July 1, she filed for reelection in 2014.
Sam Olens chaired Mitt Romney’s 2012 campaign in Georgia, volunteering his time outside his AG duties. (Romney beat Obama, 53-45 percent, in the state.) His Democratic foe in 2010, a former prosecutor, called Olens’s emphasis on national and constitutional issues “frivolous.” Olens, 56, won handily.
For 12 years, he was chairman of the Cobb County Board of Commissioners in suburban Atlanta. For a politician, he is low-key and cerebral. Of AGs he says, “Clearly our most important role is combating federal overreach.” With waves of new regulations from the Obama administration, “I don’t see where our work is getting any lesser.”
Alan Wilson, 40, is the son of Joe Wilson, the Republican congressman from South Carolina who interrupted an Obama speech to Congress in 2009 by yelling, “You lie.” As AG, Wilson succeeded Henry McMaster, an early proponent along with Bill McCollum of taking legal action against Obamacare. Both he and McCollum lost races for governor in 2010—evidence AG isn’t a reliable springboard to governor.
Wilson defeated the Obama administration on a voter ID case. In 2012, Justice Department lawyers refused to approve a law requiring ID to vote. Wilson appealed the decision, and a three-judge panel ruled the ID requirement did not discriminate against racial minorities—exactly the opposite of what Justice had claimed. “Being silent and doing nothing is never the right answer,” Wilson says. “What happens in one state can happen in another.”
He’s a firm believer in collective action by Republican AGs. “Who else can bring a lawsuit on behalf of a state?” he says. “That’s a powerful thing, especially when you have a dozen states. . . . I stand ready to help my fellow AGs if I can. I’ve never felt alone on national issues.” And the good thing about collaborating with Republican AGs, he says, is “there are no ball hogs.”
Beyond the lawsuits they’ve brought, these AGs have a special significance. They’re the future. The legal culture has changed, and smart, young, conservative lawyers can now see a career path that involves years, perhaps decades, as a state attorney general or an assistant AG. Abbott’s staff, for example, is loaded with high-octane young lawyers. From 2003 to 2008, Abbott’s solicitor general was Ted Cruz, the Texas senator elected last year.
Randy Barnett, a Georgetown University law professor, says a law school student in the 1970s would rarely encounter conservative legal philosophy or ideas. The student would have to find them on his own. Barnett, an architect of legal strategy against Obama, was one of the students who did.
Now there are organizations that bring conservative lawyers together. The Federalist Society, founded in 1982, has more than 53,000 members and chapters at over 200 law schools. Conservative public interest law firms and foundations were created. The Institute for Justice began its lively defense of civil liberties in 1991. Three years later the Becket Fund for Religious Liberty opened its doors. In 1999, the Republican Attorneys General Association was started by Alabama AG Bill Pryor and a few others. Pryor is now a judge on the 11th U.S. Circuit Court of Appeals.
And by the mid-1990s, a conservative legal movement was rising. “Most of the Republican AGs,” Barnett says, have come out of the new legal culture. “I don’t think you are going to see any decline in the importance of state AGs in our constitutional system,” Leonard Leo says.
More Abbotts are in the legal pipeline. And if all goes well, voters will soon know their names.
Fred Barnes is an executive editor of The Weekly Standard.
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