“All politics is local,” said the late Speaker of the House Tip O’Neill, and I’m sure he knew what he was talking about then.
But these days, all politics is national. And no one understands that better than Arkansas Attorney General Leslie Rutledge and her fellow attorneys general across the land.
Rutledge occupies a state office – in short, she’s Arkansas state government’s lawyer.
But her position lets her involve herself in federal issues – sometimes by necessity, other times by choice. In fact, sometimes she and other attorneys general can have a greater effect on national policies than most members of Congress. Each of those is just one of 535 members of an institution that can’t get anything done anyway.
The latest example of how national politics are shaped by state attorneys general is playing out in Texas. There Arkansas under Rutledge is one of 20 states challenging the constitutionality of the Affordable Care Act, otherwise known as Obamacare. The suit says the law is unconstitutional because one thing Congress did accomplish last year was repeal the penalty for not having health insurance. The U.S. Supreme Court originally upheld the law by calling the penalty a “tax,” which Congress has the power to do. Starting next year, there will be no “tax.”
Eighteen attorneys general and two governors are suing to end the Affordable Care Act. All are Republicans. Sixteen states and the District of Columbia are defending the law. All have Democratic attorneys general. (Although Minnesota is participating through its Department of Commerce.) Meanwhile, President Trump’s Justice Department filed a brief arguing that Obamacare’s requirement that insurers cover people with pre-existing conditions is unconstitutional.
Last year’s health care debate between Republicans and Democrats in Congress is continuing in this lawsuit between Republican and Democratic attorneys general. What Republicans in Congress could not accomplish through the legislative process – killing the law – Republican attorneys general are trying to accomplish in court, with an assist from Congress.
I guess I should point out that Republicans once complained about judicial activism.
And I guess Republicans would say this is just how things are done. On January 2, The Hill reported that Democratic attorneys general had filed almost 50 lawsuits against the Trump administration during his first year. States sued over the president’s travel ban, vehicle emissions standards, a ban on transgender military personnel, and other issues. Democratic Attorneys General Association spokesman Sean Rankin said the AGs were coordinating with each other like never before because they were “the only group of elected officials at this moment in time that have got the tools to defend the American people.” Before last year, Republican attorneys general were suing President Obama.
Meanwhile, immigration is another issue where Rutledge is playing in national politics. On May 1, she joined a seven-state lawsuit challenging the constitutionality of the Deferred Action for Childhood Arrivals program. Created by President Obama’s executive order, DACA prevents people brought to America illegally as children from being deported. Last year, Rutledge joined a 10-state coalition that threatened to expand a lawsuit against the Trump administration if it didn’t rescind DACA. President Trump did so with the provision that Congress had six months to act. It didn’t (of course), but court rulings left its status basically unchanged.
In addition to joining lawsuits, Rutledge also has attached Arkansas’ name, and by extension her own, to legal briefs filed in cases involving some of the country’s hottest hot button issues. Arkansas was one of 20 states filing a brief supporting the Colorado baker who declined to bake a cake for a same-sex wedding. Rutledge led a 10-state coalition that filed a brief supporting a T-shirt printing company that declined to work with a gay pride festival in Kentucky.
The Constitution was designed so the primary venue for debating contentious national issues would be Congress, one of three co-equal branches of government. But now Congress in its gridlock can do little but watch as the executive branch, the judiciary and the states act.
Government via lawsuit is less democratic, but at least attorneys general come into office through an election. By the way, there’s another one of those in Arkansas this year.
Steve Brawner is a syndicated columnist in Arkansas. Email him at firstname.lastname@example.org. Follow him on Twitter at @stevebrawner.