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Sunday, November 16, 2014

Federalism and State Attorneys General

In the 2014 midterm elections, Adam J. White writes at The Weekly Standard, Republican candidates for attorney general (AG) won 19 of 31 elections, giving them a 27-23 majority overall.  There are implications for federalism:
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.