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The Last Redoubt

Republican attorneys general: the unsung heroes in challenging the Obama agenda

Jul 22, 2013, Vol. 18, No. 42 • By FRED BARNES
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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.

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