The MGA Should Rein In the Attorney General’s New Powers

Thomas A. Firey Jan 18, 2018

Last year, the Maryland General Assembly gave the state’s Attorney General’s Office full freedom to pursue “civil and criminal suits and actions that are based on the federal government's action or inaction that threatens the public interest and welfare of the residents of the State.” The MGA even directed the governor to make annual outlays to the AG’s Office for such actions.

 

With Donald Trump newly arrived in the White House, the legislation seemed like a good idea. Trump has made clear his low regard for the limits, separation and division of power that the Framers placed on federal—and especially executive—power. State legal challenges are an important check on federal overreach.

 

The only problem with the legislation is that the AG could use this new freedom to launch groundless but ideologically appealing suits at taxpayers’ expense. And with the legislation less than a year old, that’s now happening.

 

Tuesday, Maryland’s AG Office joined with 21 other attorneys general in an action against the Federal Communications Commission. The AGs charge that last December’s FCC decision to withdraw “net neutrality” rules on internet service providers was “arbitrary, capricious, and an abuse of discretion” under various federal laws. Problem is, the AGs likely realize their charges are groundless.

 

The FCC has reasonable justification for its decision, backed by plenty of scholarly analysis. Of course, that analysis could be wrong—but that’s a policy disagreement that is to be settled by policymakers, not the stuff of a groundless “arbitrary and capricious” charge settled in court. Instead of acting as a check on some abusive behavior by the Trump administration, the AGs’ suit is akin to the abusive “nuisance” suits that citizen Trump often threatened against others—except that the AGs’ suit will result in taxpayers paying the lawyers on both sides of the action.

 

I suppose I can’t blame Maryland Attorney General Brian Frosh and his lieutenants for participating in this apparent sham lawsuit. The MGA unwisely gave them broad authority to politically grandstand on the taxpayers’ dime. But if state lawmakers take seriously their responsibility to their constituents, then they will rein in the freedom they’ve given to the attorney general. The AG’s Office should be protecting Marylanders, not delivering legally groundless ideological catharsis.