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Frosh goes on the offensive with Md. Defense Act

‘It was pretty obvious … that Maryland’s interests were affected by what was going on in D.C. — and affected adversely,’ Maryland Attorney General Brian E. Frosh says in defending his use of the Maryland Defense Act of 2017 to bring lawsuits against the Trump administration unilaterally. (Photo illustration by Laura Black)

‘It was pretty obvious … that Maryland’s interests were affected by what was going on in D.C. — and affected adversely,’ Maryland Attorney General Brian E. Frosh says in defending his use of the Maryland Defense Act of 2017 to bring lawsuits against the Trump administration unilaterally. (Photo illustration by Laura Black)

ANNAPOLIS — Seven days after President Donald Trump was inaugurated, he signed a controversial executive order blocking refugees from seven Muslim-majority countries from entering the United States. Hundreds of people were detained and thousands of visas were revoked as part of what became known as the Muslim ban.

In response, on Feb. 1, 2017, Maryland Attorney General Brian E. Frosh, a Democrat, requested permission from Republican Gov. Larry Hogan to challenge the constitutionality of the order.

Hogan did not respond to Frosh’s request.

Two weeks after the request, the Democrat-controlled Maryland General Assembly passed a joint resolution, called the Maryland Defense Act of 2017, immediately granting the attorney general expansive authority to file lawsuits against the federal government without prior approval from either the governor or the state legislature.

On March 13, 2017, Frosh joined a coalition of 12 other states and the District of Columbia in a lawsuit against the Homeland Security and State departments challenging the immigration ban.

This marked the first time in more than 150 years that a Maryland attorney general unilaterally joined a lawsuit against the federal government — a power Frosh has revisited more than 20 times since that day.

Some legal experts see Frosh’s expanded authority as Maryland simply catching up to other states, said former Maine Attorney General Jim Tierney, a Democrat who served from 1980 to 1990 and has been a proponent of broad legal autonomy for the attorney general since his time in office. More than 40 other states and the District of Columbia allow their attorneys general to file lawsuits independently.

“Democracy works better when state attorneys general have the ability to keep the federal government obeying the law,” Tierney said. “If the AGs can’t do it, no one else can.”

Frosh defended the measure in an interview with Capital News Service, calling it “necessary” to combat the Trump administration’s policies, which he called “unconstitutional” and “threatening to Maryland.”

“It was pretty obvious … that Maryland’s interests were affected by what was going on in D.C. — and affected adversely,” he said.

Wide-ranging suits

In the 18 months since Frosh was granted his new authority, his office has led or joined more than 20 lawsuits against the Trump administration on issues ranging from suing to protect the Deferred Action for Childhood Arrivals immigration policy to investigating whether Trump has benefited financially from foreign governments, an act forbidden under the Constitution’s emoluments clause.

Litigation to protect the Affordable Care Act, net neutrality and several challenges to the Environmental Protection Agency, and Energy, Education, Health and Human Services and Justice departments have followed.

Craig Wolf, Frosh’s Republican challenger in the general election this fall, said the attorney general is more focused on attacking the Trump administration than addressing issues like gun violence in Baltimore and the statewide opioid epidemic. Frosh has been investigating opioid manufacturers dating to 2016.

“The attorney general should only bring cases when, No. 1, Maryland’s direct interests are at heart; No. 2, there’s a sound legal base; and No. 3, there’s a chance of success on the merits, on the facts,” Wolf said. “Most of the cases that he’s filed are policy disputes, not legal disputes. They are based upon his feeling that the administration has changed rules that he doesn’t agree with.”

But former Maryland Attorney General Doug Gansler, a Democrat and Frosh’s predecessor, supported Frosh’s efforts, calling him “the last line of defense” to protect Maryland’s public interest.

“It’s not Congress standing up to Trump,” Gansler said. “There has to be a check on power and Frosh is it.”’

Frosh has taken particular interest in protecting the state’s environment. Nearly half of the lawsuits are against the Environmental Protection Agency, ranging from properly labeling pesticides and protections against greenhouse gas emissions, to fighting vehicle emissions standards and air pollution control.

Frosh this month filed another lawsuit against the agency for failing to control air pollution released by power plants in neighboring states.

Frosh called these lawsuits “critically important” to protecting Maryland’s air, soil and waterways and its people. The EPA has rolled back nearly 50 environmental regulations since Trump took office, according to a rollback tracker maintained by Harvard Law School.

“The Trump administration, instead of addressing or enforcing the rules and laws (protecting the environment) that were put in place by the Obama administration, is not just failing in their duty to do it, they’re refusing to do it, which is a violation of the law,” Frosh said.

Budget buster?

Frosh’s critics have questioned how the attorney general will pay for the lawyers and hours spent litigating Trump’s policies. The 2017 resolution included $1 million in additional funding for the attorney general’s office to pay for more lawyers. Hogan refused to sign the bill and used his budgetary powers to withhold the funds.

“When he (Frosh) sought this authority, he said he didn’t need money,” Wolf said. “Then he came back and said he needed $5 million to do it. You have got to wonder how he’s paying for all of this.”

Wolf also said that lawyers from other divisions in the attorney general’s office are being assigned to lawsuits against the federal government.

“He’s robbing Peter to pay Paul,” Wolf said. “He’s using lawyers that would be assigned to other divisions whether it be consumer protection or environmental or securities or whatever it might be.”

This is not the case, Frosh said, adding that his office has received a grant from New York University School of Law’s State Energy & Environmental Impact Center to fund two lawyer positions in his office,  and has also received significant pro-bono help from outside law firms.

“I’ve heard criticism for millions we’re wasting, but in fact the cost to the state is negligible,” Frosh said.

Maryland Speaker of the House Michael Busch, who signed the resolution granting Frosh his powers, said additional funding is necessary for the attorney general to continue doing his job.

“There’s no sense in giving authority if you aren’t going to provide resources” to carry it out, Busch said in  September.

Partisan battles

All but one lawsuit Frosh has led or joined since last year has included states with Democratic attorneys general. The partisan divide between states’ attorneys general and the federal government is a recent development, said Todd Eberly, associate professor of political science at St. Mary’s College of Maryland.

Republican attorneys general sued President Barack Obama’s administration over partisan disagreements on DACA and the Affordable Care Act, Eberly said. Now, Democrats are suing the Trump administration in the same way.

Between when Frosh was sworn in Jan. 6, 2015, and when he was granted more legal authority, his office had not filed a lawsuit against the federal government.

“When this trend began … I understood what it was,” Eberly said. “It’s not necessarily driven by questions of good policy but driven by partisan politics. It’s virtually impossible to deny that that’s what’s happening.”

Frosh pushed back on the notion that litigation his office has brought against the Trump administration was due to political disagreements. Every lawsuit he has joined or initiated has been necessary, he said.

“If you look at what happened in the first month of Trump’s presidency, there were a series of actions that were taken (by the president) that were unconstitutional (and) in violation of the law … that just were threatening to Maryland,” Frosh said. “I wouldn’t have filed them if they weren’t important.”

Capital News Service correspondent Savannah Williams contributed to this report.

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