State Push Against Incumbent Administration

Many posts have discussed federalism.

 Bruce Mehlman:

States Increasingly Battle Washington, Further Squeezing Business. Regardless of whether activist pressure returns, #resistance will come from blue states. U.S. states are increasingly all red or all blue… 38 of 50 have complete one party control in 2025. Ambitious governors and attorney generals fight Washington whenever their party does not hold the White House via competing policy initiatives or lawsuits, often pressuring businesses to “take a side” and/or develop different products / services for red America vs blue America.

 

POTUS and Marijuana

From President Biden:

As I often said during my campaign for President, no one should be in jail just for using or possessing marijuana. Sending people to prison for possessing marijuana has upended too many lives and incarcerated people for conduct that many states no longer prohibit. Criminal records for marijuana possession have also imposed needless barriers to employment, housing, and educational opportunities. And while white and Black and brown people use marijuana at similar rates, Black and brown people have been arrested, prosecuted, and convicted at disproportionate rates.

Today, I am announcing three steps that I am taking to end this failed approach.

First, I am announcing a pardon of all prior Federal offenses of simple possession of marijuana. I have directed the Attorney General to develop an administrative process for the issuance of certificates of pardon to eligible individuals. There are thousands of people who have prior Federal convictions for marijuana possession, who may be denied employment, housing, or educational opportunities as a result. My action will help relieve the collateral consequences arising from these convictions.

Second, I am urging all Governors to do the same with regard to state offenses. Just as no one should be in a Federal prison solely due to the possession of marijuana, no one should be in a local jail or state prison for that reason, either.

Third, I am asking the Secretary of Health and Human Services and the Attorney General to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law. Federal law currently classifies marijuana in Schedule I of the Controlled Substances Act, the classification meant for the most dangerous substances. This is the same schedule as for heroin and LSD, and even higher than the classification of fentanyl and methamphetamine – the drugs that are driving our overdose epidemic.

Finally, even as federal and state regulation of marijuana changes, important limitations on trafficking, marketing, and under-age sales should stay in place.

Too many lives have been upended because of our failed approach to marijuana. It’s time that we right these wrongs. 

The Congressional Research Service finds that a president cannot directly decriminalize marijuana, but there is more to the story -- hence step three of the Biden announcement.

Either Congress or the executive branch has the authority to change the status of marijuana under the CSA [Controlled Substances Act]. Congress can change the status of a controlled substance through legislation: Congress included  marijuana in Schedule I by legislation when it enacted the CSA, and has more recently passed legislation to impose controls on other substances, including synthetic cannabinoids and fentanyl analogues. In the alternative, the CSA empowers DEA to make scheduling decisions through the notice-and-commentrulemaking process, in consultation with the Department of Health and Human Services (HHS) (HHS has delegated its factfinding role in this process to the Food and Drug Administration (FDA)). The CSA provision directing DEA to schedule controlled substances as “required by United States obligations under international treaties” may limit the agency’s authority to relax controls of marijuana; another CRS report discusses considerations for Congress related to marijuana’s status under international drug control treaties.

If the President sought to act in the area of controlled substances regulation, he would likely do so by executive order. However, the Supreme Court has held that the President has the power to issue an executive order only if authorized by “an act of Congress or . . . the Constitution itself.” The CSA does not provide a direct role for the President in the classification of controlled substances, nor does Article II of the Constitution grant the President power in this area (federal controlled substances law is an exercise of Congress’s power to regulate interstate commerce). Thus, it does not appear that the President could directly deschedule or reschedule marijuana by executive order.

Although the President may not unilaterally deschedule or reschedule a controlled substance, he does possess a large degree of indirect influence over scheduling decisions. The President could pursue the appointment of agency officials who favor descheduling, or use executive orders to direct DEA, HHS, and FDA to consider administrative descheduling of marijuana. The notice-and-comment rulemaking process would take time, and would be subject to judicial review if challenged, but could be done consistently with the CSA’s procedural requirements. In the alternative, the President could work with Congress to pursue descheduling through an amendment to the CSA.

Weed the people: These are the states where marijuana is legal.

This map reveals that public opinion, red and blue states, and voters across the political spectrum have all come around to the idea of legal weed. pic.twitter.com/4MegZIgnv6

— Vox (@voxdotcom) April 20, 2022

Justice and Constitutional Design

At The Hill, Stuart M. Gerson  former Acting Attorney General; Peter D. Keisler former Acting Attorney General; and Carrie Cordero former Counsel to the Assistant Attorney General for National Security.

[W] hile federal law enforcement activities fall under the leadership and guidance of the Attorney General, the criminal justice system functions as an interconnected network of federal, state and local law enforcement, and federal and state judges and courts. Each official and officer in this system takes no oath to any elected official, but instead to upholding the law, and the constitution.

The decision to charge someone with a crime and bring the full weight of prosecutorial power must always be nonpartisan, and never borne of retribution, ambition or malice. Although selection of prosecutors and judges often involves political affiliation and political processes, those selections must be made in a way that brings confidence that justice will be administered without regard to politics. Americans should demand that the Justice Department be led by an Attorney General of sufficient qualifications who has been subject to the rigor and legitimacy of a Senate confirmation.

Above all, our national leaders and political partisans of all stripes must remember that we depend upon our Department of Justice to act in a fair and independent manner and with a constant eye on the rule of law. That department is not the law firm of the chief executive or any political appointee but, instead, is the representative of all the people and the abiding institutions of America.

Finally, no person is above the law. Lawyers can and will argue whether the mechanics of the criminal justice system can reach the highest office, and the details of who in government is subject to what legal process. Regardless of how the courts might resolve these types of questions, the constitution provides a system for removing corrupt officials from federal office. In any case, whether an inquiry as to removal from office derives from the current set of far-reaching investigations or otherwise, the exercise of this authority does not create a constitutional crisis; instead, it is an exercise of constitutional design.

Presidents and Attorneys General

From the Comey memos:

At about this point, he asked me to compare AG Holder and AG Lynch. I said I thought AG Holder was smarter and more sophisticated and smoother than AG Lynch, who I added is a good person. He said Holder and President Obama were quite close. I replied that they were and it illustrated, in my view, a mistake Presidents make over and over again: Because they reason for a President come from Justice, they try to bring Justice close, which paradoxically makes things worse because an independent DOJ and FBI are better for a president and the country. I listed off John Mitchell, Ed Meese, and Al Gonzales as examples of this mistake, and he added Bobby Kennedy.

Sally Yates v. Trump

Before Trump fired her for refusing to defend his Muslim ban, Acting Attorney General Sally Yates explained:

On January 27, 2017, the President signed an Executive Order regarding immigrants and
refugees from certain Muslim-majority countries. The order has now been challenged in a number of jurisdictions. As the Acting Attorney General, it is my ultimate  esponsibility to determine the position of the Department of Justice in these actions.

My role is different from that of the Office of Legal Counsel (OLC), which, through
administrations of both parties, has reviewed Executive Orders for form and legality before they are issued. OLC’s review is limited to the narrow question of whether, in OLC’s view, a proposed Executive Order is lawful on its face and properly drafted. Its review does not take account of statements made by an administration or it surrogates close in time to the issuance of an Executive Order that may bear on the order’s purpose. And importantly, it does not address whether any policy choice embodied in an Executive Order is wise or just.

Similarly, in litigation, DOJ Civil Division lawyers are charged with advancing
reasonable legal arguments that can be made supporting an Executive Order. But my role as leader of this institution is different and broader. My responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts. In addition, I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right. At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful.

Consequently, for as long as I am the Acting Attorney General, the Department of
Justice will not present arguments in defense of the Executive Order, unless and until I become convinced that it is appropriate to do so.

CNN reports:

Video of Yates' 2015 confirmation hearing as deputy attorney general shows Sen. Jeff Sessions grilling her about her responsibility to then-President Barack Obama should he require her to execute "unlawful" views. Sessions is now Donald Trump's pick to lead the Justice Department.

"You have to watch out because people will be asking you to do things and you need to say no. You think the attorney general has the responsibility to say no to the President if he asks for something that's improper?" Sessions asks Yates.

"A lot of people have defended the Lynch nomination, for example by saying, 'Well, he appoints somebody who's going to execute his views, what's wrong with that?' " the GOP senator from Alabama asks, referring to Obama's 2014 nomination of Loretta Lynch as attorney general.

"But if the views the President wants to execute are unlawful, should the attorney general or the deputy attorney general say no?"

Yates replies: "Senator, I believe the attorney general or the deputy attorney general has an obligation to follow the law and the Constitution and to give their independent legal advice to the President."

 

Liberal Attorneys General v. Trump

Vivian Yee writes at The New York Times:

As Democrats steel themselves for the day next month when the White House door will slam on their backs, some of the country’s more liberal state attorneys general have vowed to use their power to check and balance Mr. Trump’s Washington.

If the Trump administration withdraws from environmental, antitrust or financial regulations, the attorneys general say they will plug regulatory holes that may gape wide open, deploying state laws like New York’s Martin Act, which allows the state attorney general to pursue wide-ranging investigations on Wall Street.

They have pledged to defend undocumented immigrants, and to combat hate crimes that many believe were unleashed by Mr. Trump’s polarizing campaign.

And if Mr. Trump’s policies veer toward the unconstitutional, several of the 10 current and incoming Democratic attorneys general interviewed recently said they would apply a remedy favored by Mr. Trump himself: a lawsuit.

The strategy could be as simple as mirroring the blueprint laid out by their Republican colleagues, who made something of a legal specialty of tormenting President Obama. Conservative attorneys general in states including Texas, Virginia and Florida have sued the Obama administration dozens of times, systematically battering Mr. Obama’s signature health care, environmental and immigration policies in the courts.

...

The states’ rights arguments that Republicans have made gospel for nearly eight years — that states must serve as a check against federal overreach — are likely to become convenient for Democrats. So are the legal tactics that Republican attorneys general used to stifle Obama administration programs, including filing lawsuits in front of friendly local judges to win nationwide injunctions against policies they hoped to stop, said Amanda Frost, a professor at American University’s Washington College of Law.

With Mr. Trump’s ascension, attorneys general of both parties may shuck any remaining veneer of nonpartisanship, even as they continue to wade across party boundaries on investigations involving consumer protection or pharmaceutical pricing.

According to Paul Nolette, a political-science professor at Marquette University, who studies attorneys general, Republican attorneys general filed partisan legal briefs in only five Supreme Court cases during the Clinton administration, a figure that rose to 97 in the first seven years of the Obama administration.

“Things are being driven more by partisan politics,” Mr. Nolette said. “On virtually every hot-button issue you can imagine, A.G.s are signaling where they stand.”

Free Speech, Climate Change, and CEI

Even if you disagree with climate-change skeptics, official harassment should be deeply troubling. Kyle Feldscher reports at The Washington Examiner:

A group targeted by Democratic attorneys general in a climate change investigation hit back at subpoenas they call "unlawful and un-American" in a new video posted Tuesday.

The Competitive Enterprise Institute fought off a subpoena from U.S. Virgin Islands Attorney General Claude Walker earlier this year. Walker's subpoena was sent to the group to try and get information about ExxonMobil's donations to the climate change-doubting think tank from 1997 to 2007.

Walker believed he was trying to investigate what ExxonMobil knew about how fossil fuels impact climate change and when, but CEI leaders say it was a battle over freedom of speech.

"No American should fear being singled out and harassed by a government official who takes a different point of view on public policy questions," says Kent Lassman, president of the group in the video.

Interest Groups and Attorneys General

A previous post noted corporate lobbying of state attorneys general. Eric Lipton reports at The New York Times:

The letter to the Environmental Protection Agency from Attorney General Scott Pruitt of Oklahoma carried a blunt accusation: Federal regulators were grossly overestimating the amount of air pollution caused by energy companies drilling new natural gas wells in his state.

But Mr. Pruitt left out one critical point. The three-page letter was written by lawyers for Devon Energy, one of Oklahoma’s biggest oil and gas companies, and was delivered to him by Devon’s chief of lobbying.

“Outstanding!” William F. Whitsitt, who at the time directed government relations at the company, said in a note to Mr. Pruitt’s office. The attorney general’s staff had taken Devon’s draft, copied it onto state government stationery with only a few word changes, and sent it to Washington with the attorney general’s signature. “The timing of the letter is great, given our meeting this Friday with both E.P.A. and the White House.”
...
Attorneys general in at least a dozen states are working with energy companies and other corporate interests, which in turn are providing them with record amounts of money for their political campaigns, including at least $16 million this year.

They share a common philosophy about the reach of the federal government, but the companies also have billions of dollars at stake. And the collaboration is likely to grow: For the first time in modern American history, Republicans in January will control a majority — 27 — of attorneys general’s offices.
...
But the attorneys general are also working collectively. Democrats for more than a decade have teamed up with environmental groups such as the Sierra Club to use the court system to impose stricter regulation. But never before have attorneys general joined on this scale with corporate interests to challenge Washington and file lawsuits in federal court.

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.

Lobbying the Attorneys General

At The New York Times, Eric Lipton reports on the the people who lobby state attorneys general.  Lawyers and lobbyists seek to influence the AGs on a wide variety of issues, though few revolving-door limits or disclosure laws apply.

A result is that the routine lobbying and deal-making occur largely out of view. But the extent of the cause and effect is laid bare in The Times’s review of more than 6,000 emails obtained through open records laws in more than two dozen states, interviews with dozens of participants in cases and attendance at several conferences where corporate representatives had easy access to attorneys general.

Often, the corporate representative is a former colleague. Four months after leaving office as chief deputy attorney general in Washington State, Brian T. Moran wrote to his replacement on behalf of a client, T-Mobile, which was pressing federal officials to prevent competitors from grabbing too much of the available wireless spectrum.
...
Private lawyers also have written drafts of legal filings that attorneys general have used almost verbatim. In some cases, they have become an adjunct to the office by providing much of the legal work, including bearing the cost of litigation, in exchange for up to 20 percent of any settlement.

Money gathered through events like the one in February 2013 at the Loews hotel is flooding the political campaigns of attorneys general and flowing to party organizations that can take unlimited corporate contributions and then funnel money to individual candidates. The Republican Attorneys General Association alone has pulled in $11.7 million since January.

It is a self-perpetuating network that includes a group of former attorneys general called SAGE, or the Society of Attorneys General Emeritus, most of whom are now on retainer to corporate clients.
...

The increased focus on state attorneys general by corporate interests has a simple explanation: to guard against legal exposure, potentially in the billions of dollars, for corporations that become targets of the state investigations.

It can be traced back two decades, when more than 40 state attorneys general joined to challenge the tobacco industry, an inquiry that resulted in a historic $206 billion settlement.

Contempt of Congress

CNN reports on a dispute between the House and Attorney General Eric Holder:

The House Oversight and Government Reform Committee recommended Wednesday that Holder be cited for contempt of Congress for failing to turn over documents relating to the botched Fast and Furious weapons sting operation. The committee measure now goes to the full House for consideration. The vote ended an extraordinary daylong hearing that took place after President Barack Obama asserted executive privilege over some documents sought by the panel investigating Fast and Furious. The White House move means the Department of Justice can withhold some of the documents.

The Congressional Research Service provides background on contempt of Congress:

Congress has three formal methods by which it can combat non-compliance with a duly issued subpoena. Each of these methods invokes the authority of a separate branch of government. First, the long dormant inherent contempt power permits Congress to rely on its own constitutional authority to detain and imprison a contemnor until the individual complies with congressional demands. Second, the criminal contempt statute permits Congress to certify a contempt citation to the executive branch for the criminal prosecution of the contemnor. Finally, Congress may rely on the judicial branch to enforce a congressional subpoena. Under this procedure, Congress may seek a civil judgment from a federal court declaring that the individual in question is legally obligated to comply with the congressional subpoena.

A number of obstacles face Congress in any attempt to enforce a subpoena issued against an executive branch official. Although the courts have reaffirmed Congress’s constitutional authority to issue and enforce subpoenas, efforts to punish an executive branch official for non-compliance with a subpoena through criminal contempt will likely prove unavailing in many, if not most, circumstances. Where the official refuses to disclose information pursuant to the President’s decision that such information is protected under executive privilege, past practice suggests that the Department of Justice (DOJ) will not pursue a prosecution for criminal contempt. In addition, although it appears that Congress may be able to enforce its own subpoenas through a declaratory civil action, relying on this mechanism to enforce a subpoena directed at an executive official may prove an inadequate means of protecting congressional prerogatives due to the time required to achieve a final, enforceable ruling in the case. Although subject to practical limitations, Congress retains the ability to exercise its own constitutionally based authorities to enforce a subpoena through inherent contempt.

CRS also provides background on executive privilege:

Presidential claims of a right to preserve the confidentiality of information and documents in the face of legislative demands have figured prominently, though intermittently, in executive-congressional relations since at least 1792. Few such interbranch disputes over access to information have reached the courts for substantive resolution, the vast majority achieving resolution through political negotiation and accommodation. In fact, it was not until the Watergate-related lawsuits in the 1970’s seeking access to President Nixon’s tapes that the existence of a presidential confidentiality privilege was judicially established as a necessary derivative of the President’s status in our constitutional scheme of separated powers. Of the nine court decisions involving interbranch or private information access disputes, four have involved Congress and the Executive. Two of these resulted in decisions on the merits. The Nixon and post-Watergate cases established the broad contours of the presidential communications privilege. Under those precedents, the privilege, which is constitutionally rooted, could be invoked by the President when asked to produce documents or other materials or information that reflect presidential decisionmaking and deliberations that he believes should remain confidential. If the President does so, the materials become presumptively privileged. The privilege, however, is qualified, not absolute, and can be overcome by an adequate showing of need. Finally, while reviewing courts have expressed reluctance to balance executive privilege claims against a congressional demand for information, they have acknowledged they will do so if the political branches have tried in good faith but failed to reach an accommodation.