The New York Analysis of Policy and Government presents a two-part examination of how some state attorneys general are abusing their offices for partisan political purposes.
The concept of elected and appointed officials exercising their office with complete impartiality is a basic tenet of fair government. While the absolute perfection of this ideal is rarely achieved, the past eight years have seen an unprecedented abandonment of the goal. Agencies such as the Justice Department and the Internal Revenue Service were extensively misused for partisan purposes.
With the regime change following the 2016 elections, the center of gravity for using public office to benefit party or ideological interests shifted to some state attorneys general. Martin Morse Wooster, writing for the Capital Research Center notes that “Aiming to reshape society, state attorneys general wield ever-expanding powers over private corporations, foundations and nonprofits. Their activities–too often motivated by ideology and politics–frequently undermine the very institutions they are supposed to protect.” The author was discussing partisan assaults on private organizations, but the concept now applies to the highly partisan and overt attempt to de facto overturn the impact of the 2016 election.
Alan Greenblatt writing in Governing magazine reports that “’Democratic attorneys general are going to be very active, suing a number of regulatory agencies,’ says Paul Nolette, a political scientist at Marquette University. ‘They will be prepared to use a kitchen sink strategy against everything coming out of the EPA…’ The number of Democratic attorneys general has ticked down with recent Republican successes at the state level. But there are still 21 of them — more than the number of Democratic governors or legislatures…And it isn’t really the number of Democratic AGs that matters. A single activist attorney general such as Eric Schneiderman of New York or Xavier Becerra of California can command a small army of lawyers.…But with prominent Democratic AGs threatening to challenge Trump before he even has made many policy pronouncements, it’s clear that legal briefs will be among the most powerful weapons progressives will be able to deploy against him.”
The City Journal offers this description of Schniederman: “New York’s progressives scored a breakthrough by electing as the state’s attorney general Eric Schneiderman, who had no prosecutorial experience but, as Ben Smith noted in a Politico profile…had ‘spent his career building an ideological infrastructure for the left.’
The issue that has gathered the most headlines in the battle between partisan attorneys general and the White House is immigration.
An Economist study emphasizes that “Lawsuits are likely to be a critical form of resistance for Democrats in the Trump era…On January 29th, 17 Democratic attorneys-general signed a letter vowing to ‘use all of the tools of our offices to fight this unconstitutional order.’ Four Democratic attorneys-general have officially filed or signed onto lawsuits challenging the restrictions. On January 31st, the city of San Francisco sued Mr. Trump over another executive order demanding that federal funding be withheld from so-called ‘sanctuary cities’ that limit their cooperation with federal immigration authorities.”
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Law suits by state attorneys general are nothing new, and both sides have used them to varying degrees. What differs in the current, concerted effort is the overt attempt to use their offices as a substitute for the political influence lost by the Democrat Party in state and federal elections over the past seven years.
The involved attorneys general are sufficiently trained in the law to know that seeking to direct border security and immigration policy is beyond their jurisdiction. As the New York Analysis of Policy and Government has previously noted, the case they brought opposing President Trump’s travel ban was successful in the radicalized Ninth Circuit, but could not pass Constitutional muster in a less politicized forum:
“There is a reality surrounding the Ninth Circuit Court’s upholding of a stay on President Trump’s temporary travel ban: It is based on that Court’s political preferences, and not on the law. It is a reflection of an ongoing and desperate attempt by the left to nullify by disruption and force the election of 2016.
“There is no Constitutional provision, no statutory law, and no legal precedent that could reasonably be cited as the justification for the opinion. There is not even political precedent to back it up. Former Presidents Carter and Obama, during their tenures in office, engaged in similar acts, without facing the obstacles now levied at the current Administration. President Bill Clinton deported 12 million illegal aliens, without the opposition of the same forces that seek to discredit Trump.
“The Constitution has no provision allowing the courts to set this type of policy. Further, Statutory law Title 8, Section 1182 of the U.S. Code explicitly, clearly, and undeniably provides the president with this authority. The Court ignored both facts in its decision. A first-year law student would be given a failing grade if he or she wrote a moot court opinion without noting those key facts.”
The report concludes tomorrow.