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Frosh’s new authority to sue feds draws praise, scorn

Maryland Attorney General Brian Frosh notes that he believes daily fantasy sports constitutes illegal gaming in Maryland, but at times says the General Assembly needs to clarify the law and raises questions about whether new regulations implemented by the Office of the Comptroller ultimately even apply to the daily fantasy industry. (The Daily Record / Maximilian Franz)

Maryland Attorney General Brian E. Frosh says he has no immediate plans to sue the federal government but needs the authority in light of President Donald Trump’s ‘chaotic’ executive orders. (The Daily Record / Maximilian Franz)

ANNAPOLIS – If you were surprised to discover that Maryland’s attorney general lacks the independent authority to sue the federal government, you are not alone. After all, the attorney general is an independent executive branch official directly elected by Maryland voters – not named by the governor or subject to confirmation by the state Senate.

Nevertheless, Attorney General Brian E. Frosh would need permission from the governor or General Assembly to sue the federal government but for the legislature’s adoption last week of a joint resolution giving the attorney general broad authority to bring suit. Frosh now joins about 40 other attorneys general nationwide who have authority to sue the federal government.

The limitation on the Maryland attorney general’s authority is found in Article V Section 3(a)(2) of the state Constitution. The provision permits the attorney general to “investigate, commence, and prosecute or defend any civil or criminal suit … in which the state may be interested, which the General Assembly by law or joint resolution, or the governor, shall have directed or shall direct to be investigated, commences and prosecuted or defended.”

Frosh, a Democrat, said Wednesday that he has no immediate plans to sue the federal government but needs the authority in light of President Donald Trump’s “chaotic” executive orders, including his prohibition on the entry of nationals from seven Muslim-majority countries, even if they are authorized to be in the United States. The order has been stayed by 9th U.S. Circuit Court of Appeals.

“We are still deeply concerned about the Muslim ban,” Frosh said, referring to the stayed executive order and continued Trump administration discussion of a similar prohibition on entry from Muslim-majority countries. “We will be considering whatever the administration does next.”

‘Good faith’

Senate Joint Resolution 5 enumerated several potential areas of litigation, including environmental protection and immigration restrictions. However, the resolution also contains a catch-all provision enabling the attorney general to take legal action against the federal government to protect “the state’s interest in the general health and well-being of its residents.”

The resolution requires only that the attorney general “consider the governor’s objection before commencing the suit or action.” Frosh said he would consider “in good faith” any objections the governor, as “chief executive of the state,” raises.

“His views are important,” Frosh said, referring to Republican Gov. Larry Hogan. “I’m hoping that we’re going to be on the same page.”

Hogan’s office, in a statement Wednesday, criticized Democratic supporters of the resolution as “more interested in speculating and philosophizing” about the goings-on in Washington, D.C., than focusing on Maryland.

“The resolution’s attempt to require the governor to weigh in on a process he no longer has any control over is potentially unconstitutional and proves that this whole thing is merely political gamesmanship,” the statement reads in part. “Marylanders don’t want Washington-style party politics in their state capital, and the governor won’t play these political games.”

Erosion of power?

Two former Maryland attorneys general, both Democrats, praised the resolution, while former Republican and Democratic governors were divided.

Douglas F. Gansler, who served as attorney general from 2007 to 2015, said that he “never understood” why he would have needed prior approval from the governor or General Assembly had he wanted to sue the federal government.

“The attorney general is a constitutionally independent official and should be treated as such,” he said. “The check and balance on the governor’s power should be the attorney general and not vice versa. The check on the attorney general is the court system.”

J. Joseph Curran Jr., Gansler’s predecessor, was more accepting of the constitutional limitation but added the General Assembly was correct to cede authority last week to Frosh.

Attorneys general should be “proactive” in pressing the rights of the state and its residents against incursions by the federal government, Curran said.

“That is why the General Assembly gave Brian Frosh the authority,” said Curran, who served as attorney general from 1987 to 2007. “You don’t have to use the authority. It is good to have it. It just strengthens your hand.”

Former Gov. Parris N. Glendening, a Democrat, said he understands the basis for Hogan’s opposition but agrees with the General Assembly’s decision to give Frosh broad authority amid the “turmoil” that Trump’s policies pose to Maryland in the areas of immigration and the environment.

“Governors have a gene that fiercely protects any gubernatorial powers or prerogatives,” said Glendening, who served as governor from 1995 to 2003. “I guess rather than defending the governor, I’m saying that I understand the governor.”

Former Gov. Robert L. Ehrlich Jr., a Republican who succeeded Glendening, said “you can’t” ignore the politics when a Democratic-run legislature broadens a Democratic attorney general’s authority when the governor is a Republican.

“It’s a long-term pattern of degrading the governor’s power,” said Ehrlich, who served as governor from 2003 to 2007.

“There is a clear pattern and it won’t stop” when the legislature and governor are of separate parties, Ehrlich added.

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