State attorneys general (AGs) are among the most powerful offi ce holders in the country, with few institutional checks on their powers. A state attorney general, such as Oklahoma’s Drew Edmondson, can bring a politically motivated prosecution in violation of the First Amendment, yet his victims may well have no legal redress. With the possible exception of former New York Attorney General Eliot Spitzer, the enormous power wielded by state attorneys general has received little scrutiny. This discussion of the nation’s half-dozen worst attorneys general, like its 2007 precursor, seeks to focus much needed attention on their most egregious abuses of power.
The historic function of a state attorney general is to act as the state’s chief legal advisor, charged with defending the state in court and giving legal opinions to offi cials on pending bills and policies. In some instances, attorneys general have been entrusted by state legislatures with enforcing specifi ed laws, assisting district attorneys in prosecuting serious crimes, and disseminating legal information.
Like other government offices, state attorney general offices were designed to have limited powers, set forth by their respective state constitutions and statutes. Under all state constitutions, the legislature, not the attorney general, is given the power to make laws. If the legislature has not specifically given the attorney general the right to enforce a particular law, then he may be exceeding his authority by bringing a lawsuit under it.
Federal law also limits an attorney general’s power. When a state attorney general attempts to regulate conduct in another state, that may violate not only state law, but also the Constitution’s Due Process and Commerce clauses, which forbid any state from imposing its laws on another state or regulating interstate commerce.
Unfortunately, many state attorneys general now ignore these constraints. In recent years, many state AGs have increasingly usurped the roles of state legislatures and Congress by using lawsuits to impose interstate and national regulations and extract money from out-of-state defendants who have little voice in a state’s political processes.
Although abuses are widespread, some attorneys general are worse than others. The greatest harms inflicted by overreaching state AGs include encroachment on the powers of other branches of government, meddling in the affairs of other states or federal agencies, encouragement of judicial activism and frivolous lawsuits, favoritism towards campaign contributors, ethical breaches, and failure to defend state laws or state agencies being sued.
1. Jerry Brown, California
2. Richard Blumenthal, Connecticut
3. Drew Edmondson, Oklahoma
4. Patrick Lynch, Rhode Island
5. Darrell McGraw, West Virginia
6. William Sorrell, Vermont