Health Care Tests the Independence of Attorneys General

In a day, an argument about health care has morphed into a case study over the relative power of governors and state attorneys general. Michigan ...
by | March 25, 2010
 

In a day, an argument about health care has morphed into a case study over the relative power of governors and state attorneys general.

Michigan Attorney General Mike Cox (a Republican candidate for governor) signed onto the suit arguing that federal health care reform's individual mandate is unconstitutional. Georgia Attorney General Thurbert Baker (a Democratic candidate for governor) refused to do so.

Michigan Gov. Jennifer Granholm, a Democrat, disagrees with Cox's suit. Georgia Gov. Sonny Perdue, a Republican, disagrees with Baker's refusal to participate in the suit. If only the two of them could swap attorneys general, everyone would be happy.

Granholm is ordering Cox's office to intervene in the lawsuit in favor of health care reform -- she says that without her approval he doesn't have the legal authority to pursue the suit.

Perdue, on the other hand, is trying to sidestep Baker entirely after the attorney general rejected his request to join the suit. The governor says he will appoint a "special attorney general" to handle the case. Meanwhile, there are rumors that the Georgia legislature may consider impeaching Baker for not following Perdue's orders.

So, what happens when an attorney general and a governor disagree?

The complete answer to that question is quite complex and I'm sure I'm wholly unqualified to answer it. So, I'll give you an incomplete answer: It depends. Attorneys general aren't the personal lawyers of governors who can only respond to their orders. But, they also tend to have some obligations to represent the state in an official capacity.

When I was writing a story about why attorneys general make good candidates for governor, I happened upon an article in the Yale Law Journal on the relationship between the two offices. The article by William Marshall, a UNC law professor, asks an interesting question: Should the federal attorney general have more independence from the president, in the same way that state attorneys general have a measure of independence from governors?

If you read Marshall's article, you'll get more of a sense of the legal history of this relationship. But, one of Marshall's central points is that legal fights between governors and attorneys general are relatively rare. Here's what he says:

The reasons why cooperation, rather than conflict, has been the rule are not complex. On one side, the Governor, even if he believes he is unduly constrained by an attorney general's position, has the general incentive to comply because he may not want to be seen as defying the Attorney General on matters for which the public expects that the Attorney General, as chief legal officer, will have greater expertise. A Governor who rejects the Attorney General's position therefore risks expending political capital by appearing reckless, if not lawless. Moreover, he risks even greater vulnerability on that point if his legal position eventually fails in court.

On the other side, the Attorney General may also be restrained from overreaching because she is aware that her role is, in large part, defined by public expectations and that her primary obligation is to defend, not contradict, the policies of state officers or agencies, except when those policies violate the law. Indeed, this understanding is so prevalent that virtually all of the state attorneys general have institutionalized it in in-house memoranda.

Conflicts are rare, but what's going on in Georgia and Michigan certainly isn't unheard of. One of the court cases Marshall cites is one out of Georgia by the name of Perdue v. Baker.

Josh Goodman
Josh Goodman  |  Former Staff Writer
mailbox@governing.com

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