The New York Analysis of Policy and Government concludes its review of how some state attorneys general abuse their office for partisan political purposes.
Hans Bader, writing for The Competitive Enterprise Institute (CEI), outlines the various ways that some state attorneys general have abused their office for partisan political purposes, aimed primarily at implementing leftist agendas rejected by the voters or prohibited by the Constitution.
“State attorneys general (AGs) are among the most powerful office holders in the country, with few institutional checks on their power. A State Attorney General…can bring a politically motivated prosecution in violation of the First Amendment, yet his victims may well have no legal redress. With the possible exception of former New York Attorney General Eliot Spitzer, the enormous power wielded by state attorneys general has received little scrutiny…Under all state constitutions, the legislature, not the attorney general, is given the power to make laws. If the legislature has not specifically given the attorney general the right to enforce a particular law, then he may be exceeding his authority by bringing a lawsuit under it. Federal law also limits an attorney general’s power. When a state attorney general attempts to regulate conduct in another state, that may violate not only state law, but also the Constitution’s Due Process and Commerce clauses, which forbid any state from imposing its laws on another state or regulating interstate commerce. Unfortunately, many state attorneys general now ignore these constraints. In recent years, many state AGs have increasingly usurped the roles of state legislatures and Congress by using lawsuits to impose interstate and national regulations and extract money from out-of-state defendants who have little voice in a state’s political processes.”
The CEI report outlines the various means leftist state attorneys generals have abused their authority:
- The Ethical Breaches and Selective Applications of the Law. Using campaign contributors to bring lawsuits. Using the attorney general’s offi ce to promote personal gain or enrich cronies or relatives. Favoritism towards campaign donors and other uneven or unpredictable application of the law (including refusal to defend state laws or state agencies being sued when plausible defenses exist).
- Fabricating Law. Advocating that courts, in effect, rewrite statutes or stretch constitutional norms in order to make new law—for example, seeking judicial imposition of new taxes or regulations, or restrictions on private citizens’ freedom to contract.
- Usurping Legislative Powers. Bringing lawsuits that usurp regulatory powers granted to the federal government or other state entities, or that are untethered to any specifi c statutory or constitutional grant of authority.
- Predatory Practices. Seeking to regulate conduct occurring wholly in other states—for example, preying on out-of-state businesses that have not violated state law and have no remedy at the polls.
The actions of the state attorneys general who are seeking to influence national policy through legally baseless lawsuits is similar to the legal offense known as “malicious prosecution.” The legal dictionary defines malicious prosecution as
“an action for damages brought by one against whom a civil suit or criminal proceeding has been unsuccessfully commenced without Probable Cause and for a purpose other than that of bringing the alleged offender to justice.
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An action for malicious prosecution is the remedy for baseless and malicious litigation. It is not limited to criminal prosecutions but may be brought in response to any baseless and malicious litigation or prosecution, whether criminal or civil.”
The use of baseless law suits which seek to defy the Constitution’s separation of powers and general governing system, will first garner success both in terms of public relations with the left wing of the Democrat Party and before sympathetic judges—and, following eight years of hard-left control of the White House, there is a significant number of them.
A Fox News analysis noted: “The president, [Obama] over the course of his two terms, has appointed hundreds of justices to the lower federal courts, leading to a majority of appeals courts now dominated by Democratic picks. While those nomination battles aren’t nearly as high-profile as they are for the high court, the impact of the appointments is just as pronounced.” A Reuters study agreed. “His appointments of dozens of judges to the country’s influential federal appeals courts have tilted the judiciary in a liberal direction that will influence rulings for years to come…”
Democrat legal officials have a history of using lawsuits as a means of gaining influence in areas in which they have been rejected by the voters. A 2014 Federalist analysis of a lawsuit against Texas elected officials outlines the tactic.
“Since 1982, the Democrat-controlled Travis County District Attorney’s Office has received state funding to manage the “Public Integrity Unit,” which has jurisdiction to investigate and prosecute political corruption by elected officials statewide. (It is odd that a local district attorney, rather than the state Attorney General, has this responsibility.) Travis County politics ensure that the PIU is used as a bludgeon against Republican officials. The notoriously partisan former District Attorney Ronnie Earle used the PIU to bring bogus charges against then-state Treasurer (and later U.S. Senator) Kay Bailey Hutchison and House Majority Leader Tom DeLay, both Republicans…”
Similar baseless actions, some prompted by organizations funded by George Soros, were brought against Texas governor Rick Perry.
However, the ultimate arbiter will be the U.S. Supreme Court. The politicized decisions of federal judges who have placed personal ideology over the law will encounter a substantial roadblock at the highest level. According to an analysis by the American Bar, the politicized Ninth Circuit, which recently ruled against President Trump’s travel ban, has a stunningly high reversal rate at the U.S. Supreme Court of 80%. The median reversal rate is 68.29%.