AG activism refers to a state attorney general overstepping his powers and forgetting his properly limited role. Examples are encroachment on the powers of other branches of government, meddling in the affairs of other states or federal agencies, and encouragement of judicial activism and frivolous lawsuits.

CEI graded state AGs on their overall performance, including acts of AG activism, in its The Nation’s Top Ten Worst State Attorneys General.  More articles about AG activism can be found here.

What is an AG’s proper role?

The historic function of a state attorney general (AG) is to defend the state in court and to give legal opinions to the governor and legislators on pending bills and policy decisions. In some instances, attorneys general have been entrusted by state legislatures with enforcing certain statutes, assisting district attorneys in prosecuting serious crimes, disseminating information on legal issues confronting the state, and policing fraud in state programs.

Why are an AG’s powers limited?

State and federal constitutional provisions seek to safeguard liberty by ensuring a division of power between different branches of government at the state level and also between state and federal governments, and by preventing interstate power struggles.  The framers of federal and state constitutions were aware that power corrupts, and unchecked power corrupts absolutely, and accordingly sought to place strong limits on the powers of government officials, like state attorneys general. 

The framers worried that allowing a state official (like an AG) to encroach on the powers of other branches of government would blur lines of accountability, thereby reducing incentives for good government; and result in burdensome, overlapping, and conflicting rules and regulations.

What limits does state law place on an AG’s powers?

Under all state constitutions, it is the legislature, not the state attorney general, which is vested with the authority to make laws and prescribe remedies for violations of the law. State constitutions give the attorney general no power to make or rewrite law.  In fact, if the legislature has not conferred the authority on an attorney general to enforce a particular law, then the attorney general may well be exceeding his authority by bringing suit under it, violating constitutional checks and balances.

What limits does federal law place on an AG’s powers?

If a state attorney general attempts to regulate conduct in another state, that violates the Due Process and Commerce Clauses of the U.S. Constitution, which forbid any state to impose its laws on another state, or to regulate commerce among states.  The Compacts Clause of the federal constitution was also intended to limit state officials’ power, by barring interstate agreements without congressional consent, in order to prevent some states from colluding at the expense of other states or the national interest.

When did AG activism become a major problem? 

Over the past decade, attorneys general have increasingly usurped the role of state legislatures and Congress by using litigation to impose what are effectively interstate and national regulations and to extract money from out-of-state defendants who have little voice in a state’s political processes. The worst offenders flaunt such abuse of power, with the most notorious of the lot, Eliot Spitzer, boasting that he “has redefined the role of Attorney General.” 

What motivates AG activism? 

AGs obtain more publicity when they wield their power more broadly, making it easier for them to achieve their political ambitions.  It also enables them to enrich campaign contributors and political supporters who will help them get reelected or elected to higher office.

What consequences has AG activism had?

It imposes major costs on consumers, businesses, the economy, and our democratic system. The wave of lawsuits brought by state attorneys general has fostered corruption, circumvented legislative checks on regulation, taxes, and government spending, made the workings of government less transparent, and diverted attention away from their core responsibilities, such as defending state agencies against lawsuits, providing legal advice to public officials, and rooting out fraud in state programs they are charged with policing.

What is CEI doing about AG activism? 

CEI is challenging the 1998 multistate tobacco settlement, known as the Master Settlement, a corrupt backroom deal between state attorneys general, big tobacco companies, and trial lawyers.  In the MSA, the big tobacco companies agreed to pay $246 billion  Trial lawyers hired by state attorneys general received $15 billion (not million, billion), including hundreds of millions of dollars to politically-connected lawyers who did little more than bring copycat lawsuits. over 25 years, plus more in perpetuity, in exchange for statutory protections against competition by their littler competitors.

CEI’s court documents challenging the MSA can be found here.