This month we are sharing a selection of paired pieces from The Federalist Society's Liberty Month in July 2015. We hope you enjoy reading them. Click here to visit the paired piece for this entry.
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What has your state attorney general done for you recently? If he or she isn’t keeping an eye on whether the federal government is overstepping its bounds, you may want to start paying closer attention to what your AG is doing.
State attorneys general have wide-ranging responsibilities. Most commonly known is the role they often play in fighting crime, whether by bringing indictments or by defending a successful prosecution on appeal. State AGs also enforce state consumer protection laws, advise and represent government agencies, and issue formal opinions on the meaning of state laws.
But there is another important job for state attorneys general that has its roots in the founding principles of this country: protecting you from federal overreach.
When they wrote the Constitution, the Framers created a system where the people gave power to two independent governments. Each of us is subject to both the federal government and a state government separately.
In some areas, federal law is supreme – that’s the deal states agreed to when they joined the union. But the federal government has to do its own work. It can’t force the states, or state legislatures or officers, to do its bidding.
The Constitution also grants the federal government only limited, defined powers. Powers not specifically granted to the central government were retained by the states – a concept reaffirmed in the Tenth Amendment.
This system of “federalism” was designed specifically to do the opposite of what its name might suggest: prevent consolidation of power in the federal government.
It’s what gives states the right to set different rules governing licensing, health and safety, and financial transactions. That’s why you can start driving at 14 in South Dakota, but not until you’re 16 in New York. And why Florida has a sales tax but no personal income tax, and Delaware has the opposite.
Federalism allows the states to be responsive to the needs and values of their own citizens, even to be laboratories for social and economic experimentation, if that’s what their citizens desire. Montana is a different place from Massachusetts; the two are allowed to have laws reflecting those differences.
Our federalist system also “enhances freedom,” the Supreme Court has said. “In the tension between federal and state power lies the promise of liberty,” wrote the Court in another case. The Framers saw the separate governments as a check on one another, just as the independent branches of the federal government balance each other. James Madison described it as “a double security” for “the rights of the people.”
So, when the federal government tries to intrude on state prerogatives, it’s not only the role, but the duty of the states to push back.
While each state is entitled to choose its own watchdog, the attorney general is usually the state officer tasked with looking out for the state’s legal interests. In my state, as in many others, the elected attorney general is given that duty by the state constitution.
The discharge of that responsibility does not always require litigation against the federal government, but sometimes it does.
Many state AGs believe the U.S. Environmental Protection Agency has exceeded the bounds of its rulemaking authority repeatedly in recent years (2015), thwarting both the U.S. Congress and states’ power to set their own environmental laws.
In response, states have fought EPA in court, in suits initiated by (mostly Republican) attorneys general, providing the second layer of security that Madison envisioned. Just a few weeks ago, the Supreme Court agreed with a bipartisan coalition of 21 states, which had argued that EPA violated the law by refusing to take into account a regulation’s costs.
Immigration is another area of recent contention. By entering the union, each state ceded power over determining the lawful presence of individuals within its borders to the federal government, as part of the federal government’s duty to protect the states. So when President Obama announced that his administration would not be enforcing certain federal immigration laws, 26 states sued, most led by their attorneys general. The states asserted that the federal government wasn’t holding up its end of the federalism bargain.
As a result of that suit, the President’s immigration action is on hold. That’s a win for federalism and, more importantly, for the rule of law. But win or lose, Republican or Democrat, the important thing is that the states continue to do their part in maintaining the necessary tension between the states and the federal government.
Has your AG done his or her part?