Opinion: The attorney general is supposed to be the state’s lawyer. He shouldn’t get to be the client as well.
Attorney General Mark Brnovich has joined an amicus brief asking the U.S. Supreme Court to permit the Trump administration to terminate the Deferred Action for Childhood Arrivals program, the Obama administration’s executive action to give those brought here illegally as children legal status.
That has brought an avalanche of criticism Brnovich’s way. I happened to believe he is right on the law. What Obama did by executive action Trump should be able to undo by executive action.
But it raises again the question of who should call the shots on what position the state takes on legal issues. After all, Brnovich isn’t representing himself. He is purporting to represent the State of Arizona.
There are arguably some constraints on what Brnovich can do in state court. A state Court of Appeals recently held that he couldn’t sue the universities over tuition rates.
State statutes, however, give him unbridled authority in federal court proceedings. But why?
In the DACA case, Brnovich simply joined an amicus brief, an advisory exhortation. So, the legal import isn’t that great.
Shouldn’t Ducey, lawmakers have a say?
But Brnovich signed the State of Arizona up as a plaintiff in a case asking that Obamacare be tossed out in its entirety as unconstitutionally enacted.
That would have devastating consequences for Arizona’s Medicaid program. The state relies heavily on the increased federal funding that was part of Obamacare. And a state hospital bed tax that also funds the program is contingent on the continuation of the increased federal funding.
Given the monumental consequences, should Brnovich have plenary authority to decide what position the state takes in court on the issue? If Brnovich’s lawsuit is successful, it would be the governor and the Legislature that would have to cope with the gigantic hole blown in Medicaid’s finances.
Attorneys general, present and past, claim inherent constitutional authority, but that’s a canard. All the state constitution says is that the powers and duties of the attorney general “shall be as prescribed by law.”
The Legislature should address the question of who decides what position the state takes in legal proceedings. The attorney general is supposed to be the lawyer. He shouldn’t be the client as well.
Reach Robb at email@example.com.
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