Delegation Enforcement by State Attorneys General

Former Virginia Attorney General Mark Earley claimed, in his keynote address at the 2017 University of Richmond Law Review Symposium, that “the most powerful elected position in the United States today with respect to checking any perceived overreach of presidential or federal power is not in Congress, the House of Representatives or the Senate, but among the fifty state attorneys general.” Although that statement at first appears extreme, the evidence in support of it is quite compelling. But even if the state attorney general is simply an important actor, the question remains how to think about its role in the constitutional system and how to evaluate whether its emerging prominence is something to be cheered or lamented. This article suggests that, despite the problems that potentially accompany this escalating role of the state attorney general, this development benefits the constitutional structure and separation of powers of the federal government. That is because one way to conceive of some actions by state attorneys general against the federal government is as a necessary constitutional check on the modern executive branch: what this article calls “delegation enforcement.” Almost all domestic actions of the executive branch occur pursuant to statutory authority, and many pursuant to a delegation of lawmaking discretion to the executive branch from Congress. Some are delegations to a particular agency, while others are delegations to the President himself. The exercise of this delegated authority—particularly when it is the President exercising it—can be difficult to challenge in federal court for a variety of reasons, not the least of which are justiciability doctrines. States, however, have unique institutional characteristics that make them ideally positioned to challenge executive action and to challenge it in the most effective manner. Congress conceivably has the authority to rescind or limit delegations when it believes the executive branch has exceeded the scope of the delegation or to annul the executive branch’s interpretation of a statutory delegation in a statute that may not have been intended to provide it. However, Congress rarely has the power or will to do so. This lack of congressional delegation enforcement arises out of a number of factors, including the difficulty of passing legislation, the two-party system, and the inability to recognize the institutional interests. Congress also has very little ability to challenge or stop executive action implementing statutory law through other means. Congress’s oversight authority is largely impotent in current practice, and the Court has severely restricted Congress’s and its members’ abilities to bring suit on their own behalf. As a result, the executive branch at times has the ability to broadly interpret delegations of authority or to take liberty with statutory requirements on which the exercise of delegated author-ity is conditioned with little fear that opposition from Congress or private litigants will be a significant obstacle. Similarly, the exec-utive branch may interpret a statutory provision to include a dele-gation of discretion where Congress may not have intended one. Internal checks may mitigate the danger of unreasonable interpretations in some circumstances, but the most effective delegation “enforcers” in the current climate are the states. In some cases, they may be the only potential avenue for delegation enforcement. Some may see a problem inherent in the idea that officials, elected or appointed to represent a single state, could function as a check on the authority of the President and executive branch. But the state attorneys general are not themselves checking the authority of the executive branch. Instead, they are the medium through which the cases can get to the judicial branch. Although there are both additional problems with the judiciary acting as the final arbiter and legitimate objections to doctrines, such as the nationwide injunction that further empowers the judiciary, a regime in which executive actions undertaken pursuant to congressional delegations are subject to review by the judicial branch is preferable to one in which there is no threat of review by an outside party. State attorneys general are an important, and in some cases necessary, means to such review. They are, at times, the only mechanism for delegation enforcement.