state attorney general

The Nation’s Worst State Attorneys General

by Hans Bader on July 22, 2010

in Deregulate to Stimulate, Economy, Energy, Environment, Insurance, Legal, Nanny State, Personal Liberty, Politics as Usual, Regulation, Sanctimony, Zeitgeist

The nation’s worst state attorneys general abuse the power of their office for political ends, undermining the rule of law.  In recent years, many state attorneys general 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,” as I explain in a recent study, The Nation’s Worst State Attorneys General.

Six state attorneys general comprise the worst-in-the-nation list:

  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

California’s Jerry Brown tops the list, for repeatedly refusing to defend state laws he disliked.  One example was Proposition 8, a state constitutional amendment prohibiting gay marriage (but not civil unions).  This constitutional provision was upheld by the state Supreme Court, which rejected Brown’s argument that it violated the state constitution.  I personally opposed Prop. 8, but it’s clear, by definition, that a provision of the state constitution cannot violate the very constitution of which it is a part; and it’s the most basic duty of an attorney general to defend state laws, whether or not he likes them.  Another example was Prop. 209, a state constitutional amendment banning racial set-asides and racial preferences.  This constitutional provision was upheld by a federal appeals court in 1997, but a dozen years later, Brown refused to defend it, claiming its ban on discrimination violated the Constitution’s equal protection clause.

Connecticut’s Richard Blumenthal scored 2nd worst on the list.  In CEI’s previous ratings, released in 2007, Blumenthal occupied the #1 worst spot.  Blumenthal hasn’t gotten any better since then,  but competition for worst AG has gotten fiercer.

Blumenthal, who has used the power of his office to spread largesse to cronies, continues to earn low grades for his ringleader role in the Tobacco Settlement racket of 1998, which he used to steer millions of dollars to his cronies, as well as for his support of racial quotas and speech restrictions, his attack on private property rights, and various other egregious acts.

The study uses several criteria for determining who made the list of shame: ethical breaches and selective applications of the law; fabricating law, usurping legislative powers; and predatory practices (such as seeking to regulate out-of-state businesses that broke no state law).

Richard Blumenthal Rated Second-Worst Attorney General in America

by Hans Bader on July 22, 2010

in Deregulate to Stimulate, Economy, Employment, Energy, Environment, Insurance, Labor, Legal, Nanny State, Personal Liberty, Politics as Usual, Regulation, Sanctimony, Zeitgeist

Connecticut Attorney General Dick Blumenthal has just been rated the second-worst state attorney general in America by the Competitive Enterprise Institute in its recent study, The Nation’s Worst State Attorneys General. If the ratings had considered only lawsuit abuse, he would have been ranked #1. (In the 2007 ratings of the The Nation’s Top Ten Worst State Attorneys General, Blumenthal was rated the #1 worst attorney general in America. Blumenthal hasn’t gotten any better since then, but the competition has gotten fiercer.)

Yesterday, legal commentator Walter Olson (who runs Overlawyered, the world’s oldest law blog, which federal courts have cited) linked to a draft of the study showing Blumenthal being rated as #3, just behind Oklahoma’s Drew Edmondson. Olson humorously noted that “at only #3, Connecticut’s Richard Blumenthal demands a recount.”

In a sense, Blumenthal now has his recount. Additional information about Blumenthal, such as his mistreatment of small-business owners, pushed Blumenthal ahead of Edmondson in a photo finish, leaving Blumenthal at #2, and Edmondson close behind at #3.

Rated #1 was California’s Jerry Brown, the nation’s worst state attorney general.

All three of these state attorneys general got an “F” in each of the four judging criteria — (1) ethical breaches and selective application of the law, (2) fabricating law, (3) usurping legislative powers and (4) predatory practices.

But picking which one was worst overall was difficult because each of these three was worse than the two others in at least one critical respect. Edmondson is probably the worst state attorney general in terms of contempt for civil liberties. Brown is by far the worst state attorney general in terms of failure to perform basic attorney general job-duties like defending the state and its laws against lawsuits.

The next three state attorneys general in the list of worst state attorneys general — Rhode Island’s Patrick Lynch, West Virginia’s Darrell McGraw, and Vermont’s William Sorrell — fared slightly better. Although they, too, received dismal marks, they each got at least one grade that was not an “F”. (Vermont Attorney General William Sorrell even got a “C” alongside his two Fs and one “D.” These lenient marks triggered a protest from a Vermont think tank, which e-mailed me this morning to say that CEI “must have some kind of soft spot for Sorrell. . . he ought to be tied for worst.”)

Here are the worst AGs’ report cards:

1. Jerry Brown, California: F,F,F,F
2. Richard Blumenthal, Connecticut: F,F,F,F
3. Drew Edmondson, Oklahoma: F,F,F,F
4. Patrick Lynch, Rhode Island: D-,F,F,F
5. Darrell McGraw, West Virginia: D-,F,F,F
6. William Sorrell, Vermont: C-,D-,F,F

Florida Attorney General Questions Constitutionality of Healthcare Bills in Congress

by Hans Bader on December 31, 2009

in Health and Illness, Healthcare, Insurance, Legal, Nanny State, Personal Liberty, Politics as Usual, Precaution & Risk, Regulation

Florida Attorney General Bill McCollum is questioning whether it is constitutional to force people to buy health insurance, as the health care bills backed by the Obama administration require.  This “individual mandate” is unprecedented and appears to exceed Congress’s power under the Commerce Clause of the Constitution.

As the Congressional Budget Office noted in 1994“,

A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.

As the news story about the attorney general’s concerns notes, in Supreme Court decisions issued in 1995 and 2000, “the high court said the commerce clause is limited to economic activities that substantially affect interstate trade in goods and services.”  (I was involved as an attorney in the latter of those two decisions, United States v. Morrison (2000)).

The individual mandate does not regulate activities, much less economic activities, but rather regulates based on inactivity, by penalizing those who decline to buy a product, health insurance (a product that young people generally do not need — as a young man, I did not go to the doctor or dentist, or purchase any drugs, for a 10-year period, and if I had become ill, my family could have easily paid my expenses).

That exceeds Congress’s powers under its Morrison and Lopez rulings, as I explained yesterday in a more extended analysis of the issue.  However, it is likely that at least four members of the current Supreme Court would vote to uphold the individual mandate, since the Morrison and Lopez decisions were 5-to-4 decisions.

Other aspects of the health care bills have also attracted legal criticism, such as their racial preferences and racial discrimination (it discriminates against white applicants in some provisions, and against minority patients in others; both forms of discrimination drew criticism from the Civil Rights Commission), and the manner in which they regulate insurance companies.

Regardless of whether the individual mandate is constitutional or not, it is certainly controversial — as are other aspects of the health care bills, which most Americans oppose.  As noted earlier, the bills would reduce life-saving medical innovation, raise many taxes, drive up insurance premiums and the deficit, break many campaign promises, and impose heavy burdens on state budgets.  They would also jeopardize the quality of medical care for many, while imposing restrictions that failed when tried at the state level, and ignoring advice from federal and academic experts, and lessons from countries with universal health care, about how to keep costs down.