Attorneys general are the first line of defense

From the Washington Examiner, By Hugh Hewitt | June 7, 2015 | 5:00 pm

A stop sign stands outside the Environmental Protection Agency (EPA) building on May 24, 2013 in Washington, DC. (Photo by Mark Wilson/Getty Images)

Martha’s Vineyard is a surprising venue for a gathering of the Republican Attorneys General Association (or “RAGA,” as it’s affectionately known), but given the ubiquity of political surveillance these days, perhaps a geographical head fake is good operational security.

Not that a DNC tracker would have been surprised by much they heard there — except perhaps the heartfelt tribute offered to a Democratic state attorney general, the late Beau Biden, offered by another citizen-soldier state attorney general, South Carolina’s Alan Wilson.

Party divisions are of course deep, and policy disagreements genuine and enduring, but it was obvious to this outsider that affection and esteem among professionals separated by party aisle remains a rule and not an exception when it comes to the untimely death of a public servant and a man who wore the uniform as well as filled the office.

My job at this gathering was to survey the presidential field, to urge the attorneys general to build the party’s legal bench by hiring 20-somethings fresh out of clerkships and throwing them the tough cases, and to highlight two incredible challenges facing every AG — and especially Republican AGs — as two perfect storms descend upon their jobs.

My law firm, Arent Fox, has expertise in contesting election recounts and in advising on legislative redistricting. In this latter area the Supreme Court has already issued one of two cart-overturning decisions due this term. A third -—- which will decide who exactly is included in the term “one person one vote” — will come next term. Almost every state legislative and congressional district will be buffeted by these decisions, and no legislator’s district is safe in its boundaries. New maps could begin to explode on the scene by the 2016 elections — maybe in many states. Perhaps in all of them by November of 2018.

Even as the AGs must superintend compliance with these new directions from the Supremes, they have to battle alone or in concert, a massive power grab by the Environmental Protection Agency in the form of its new definitions of what the agency claims to be a “water of the United States,” and thus within EPA’s regulatory authority to order left untouched or developed only as the EPA deems fit and only in exchange for “mitigation” the EPA deems adequate.

This astonishing, power-grabbing rule — I told the AGs that overwatering of plants could bring a backyard under the EPA’s asserted control of standing water results — so upends the intention of the 1972 Clean Water Act that reversal by any fair-minded court would seem certain. But recall Harry Reid facilitated the packing of the key federal appeals court — the Court of Appeals for the District of Columbia Circuit — with President Obama’s hyper-activist appointees last year by breaking the judicial filibuster rules.

If the AGs are going to battle back in the defense of their states’ landowners, and indeed to protect their own state’s lands, they will have to launch dozens of suits in circuits far from D.C., pushing those federal courts to just say no to the EPA in every category of wetland, water and pool now within the EPA’s newly asserted power.

The EPA is not an agency interested in what the Congress or courts tell them; it is interested in the loopholes left them. These holes must all be plugged, and it will be the state AGs who do the heavy lifting here.

It used to be that state attorneys’ general offices were seen as mere way-stations on the way to the state houses. They remain that, of course, but in the Obama Era of Leviathan federal agencies, they remain the first line of defense for property rights and fair elections.

Hugh Hewitt is a nationally syndicated talk radio host, law professor at Chapman University’s Fowler School of Law, and author, most recently of The Happiest Life. He posts daily at and is on Twitter @hughhewitt.


One response

  1. “It used to be that state attorneys’ general offices were seen as mere way-stations on the way to the state houses. They remain that, of course, but in the Obama Era of Leviathan federal agencies, they remain the first line of defense for property rights and fair elections.”

    That’s all warm and cozy. There may be a rare “activist” state AG somewhere…but, if there is, he/she is doing an exceptional job of staying very low-key since they don’t seem to be making the news with their alleged David vs. Goliath legal crusade(s) against the D.C. 800-lb gorilla.

    The state AG’s only get involved in the legal process vs. the D.C./Federal Juggernaut when they have “a legal leg to stand on”, to-wit: AFTER their respective state legislatures have passed a law(s) protecting the residents of said state in whatever area of concern that the Feds are attempting to encroach. Therefore, I consider state legislatures to be “the first line of defense” while the state AG’s merely “carry the balls thrown by the state legislative quarterbacks”.

    The “nullification” of onerous and civil-rights-violating Federal laws is supposed to be the bailiwick of the respective state legislatures and possibly the state governors if a veto-proof majority in the respective state legislatures isn’t sufficient to overturn their governors’ vetoes if they are not in agreement with various matters of legislation.

    Some states legislatures are confronting the D.C. power-hungry and civil-rights-violating hegemon. For example, some states are passing legislation that nullifies federal laws such as unconstitutional gun control measures and useless drug laws (“Possession of Marijuana”).

    Personally, I don’t have as much faith in the various state attorneys general as the author, Hugh Hewitt, apparently does. I haven’t met any politicians of either co-opted political party who doesn’t aspire to higher political offices that come with more power and more money in their collective pockets. And that goes doubly so for politicians with law degrees.

    The two most honest and grounded politicians in my lifetime, JFK and Ron Paul, are murdered and retired, respectively. The fact that these two men left the political scene almost 50 years apart from each other, one involuntarily and one voluntarily, says a lot about the sorry field from which we draw our politicians.

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