The Appeal of State Attorneys General in a Federal System: (Review of Paul Nolette, Federalism on Trial: State Attorneys General and National Policymaking in Contemporary America)

Abstract

From Florida’s partial success in dismantling the Affordable Care Act in the Health Care Cases to Maryland’s recent claim that President Trump is violating the Foreign and Domestic Emoluments Clauses, states through their AGs are mobilizing to accomplish in the courts what Congress and the president cannot or will not do in the ordinary policymaking process. While this appears to be a recent spillover of today’s polarized politics into the courts, Paul Nolette traces the causes back nearly a half century in his rich account of the rise of AGs, Federalism on Trial. Nolette, a lawyer and assistant professor of political science at Marquette University, explains how “state litigation’s status as an increasingly powerful aspect of national policymaking is a product of the peculiar structure of new social policy regimes constructed by state and federal lawmakers in the 1960s and 1970s” (p. 3).

Nolette’s most powerful criticisms go to the processes of political accountability rather than the substance of policy outcomes. “As AGs become more aggressive in using litigation to achieve policy goals in the name of the state,” he argues, “it has become more difficult for voters to know who to hold responsible for these policy decisions” (p. 212). AGs stand at the intersection of several systems of checks and balances. They can counter the federal legislature, executive, and judiciary, or side with one branch against the others. Meanwhile they face a similar separation of powers, often including a division of executive power with the governor, within their states. Each branch, federal and state, legislative, executive, and judicial, is more or less answerable to the electorate. As these checks and balances solve some accountability problems, they create others. Given these accountability problems across the system, does the power of AGs in contemporary policymaking help the system work better on balance? Regardless of whether one agrees with Nolette’s answer, Federalism on Trial goes a long way toward framing the question.

Keywords: Federalism, States, Attorney General