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AG Frosh’s powers expanded during 2017 legislative session


Despite legislative action that broadens his powers, ‘we aren’t going to go out haphazardly filing lawsuits,’ Attorney General Brian E. Frosh says. (File Photo/Maximilian Franz)

ANNAPOLIS – Now that Maryland Attorney General Brian E. Frosh has the authority to sue the federal government, will he? And will Frosh, pending enactment of a General Assembly-passed measure, sue pharmaceutical companies if they raise the prices of generic drugs to an amount he deems gouges consumers?

“We will use it (the authority) if we think it will protect the citizens of this state,” Frosh said Tuesday. “We aren’t going to go out haphazardly filing lawsuits.”

The attorney general said he and senior members of his office are monitoring President Donald Trump’s executive orders and agency actions to ensure they do not violate the rights of Maryland residents or the state’s environment. Frosh, a Democrat, added he expects litigation will be in the offing based on the Republican Trump’s stated desire to deregulate health care and environmental protection.

“There may be more opportunities (to sue) than we would like,” Frosh said.

But Frosh’s record as attorney general indicates — on matters of national and state importance — a greater willingness to join litigation or friends of the court briefs brought by others than to initiate suit or write the briefs himself.

Frosh called this assessment “correct” and the result of having a budget and staff smaller than those of more assertive attorneys general, such as California’s Xavier Becerra and New York’s Eric Schneiderman, and of a personal manner that shuns the spotlight.

“We don’t have a big army,” Frosh said of his staff of about 280 people. “I don’t have a burning need to have my name at the top of the list.”

To wit, having been given the authority to sue the federal government, Frosh chose neither to initiate nor to join a lawsuit the American Civil Liberties Union and the National Immigration Law Center brought in U.S. District Court in Greenbelt challenging the constitutionality of Trump’s prohibition on U.S. entry by nationals from six predominantly Muslim countries.

The case is now pending in the 4th U.S. Circuit Court of Appeals after the Trump administration appealed U.S. District Judge Theodore D. Chuang’s preliminary injunction against the ban. Frosh, with Virginia Attorney General Mark R. Herring, has submitted a brief to the 4th Circuit in support of Chuang’s injunction.

Frosh also joined in Washington Attorney General Robert W. “Bob” Ferguson’s lawsuit successfully challenging Trump’s travel ban in a federal district court in Seattle.

And when the Supreme Court was preparing to hear a landmark case addressing whether same-sex couples have a constitutional right to marry, Frosh signed on to a friend-of-the-court brief Massachusetts Attorney General Maura Healey submitted to the justices in March 2015.

Maryland, not Massachusetts, was the first state to enact a same-sex marriage law rather than have it ordered by a court, a point Frosh made in a report he sent to the Supreme Court in support of the right.

The high court ultimately ruled in the case, Obergefell v. Hodges, that same-sex couples have a constitutional right to marry.

“I am happy to help my colleagues,” Frosh said of joining rather than leading. “I am happy to play any role that is productive.”

But the attorney general did take a leading role as he successfully lobbied the General Assembly this session for more authority.

The General Assembly – where Frosh spent more than a quarter century as a delegate and senator – passed a joint resolution enabling the attorney general to sue the federal government on matters of environmental protection and immigration restrictions.

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.”

In addition, the resolution enables the attorney general to file suit immediately if he determines “emergency circumstances” demand such quick action “to protect the public interest and welfare of the residents of the state against the action or inaction of the federal government.” Otherwise, if time is not of the essence, the attorney general must provide the governor with written notice of the intended lawsuit and give him or her 10 days to object to the planned litigation.

The resolution requires only that the attorney general “consider the governor’s objection before commencing the suit or action.”

The General Assembly, again at Frosh’s urging, also passed legislation empowering the attorney general to sue manufacturers of off-patent generic drugs for alleged price gouging. The first-in-the-nation legislation, awaiting Gov. Larry Hogan’s signature, was prompted by the infamous case of Martin Shkreli, the chief executive office of Turing Pharmaceuticals, who raised by 5,000 percent the price of Daraprim, a drug used to treat HIV, malaria, some cancers and toxoplasmosis, an infection from cat parasites that has been linked to birth defects.

Frosh said his office is ready to go to court if necessary.

“We have resource constraints; we have had authority constraints” he added. “(But) people in my office are passionate.”

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