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.”