Letting Frosh do his job

Gov. Larry Hogan has decried the legislature's effort to give Attorney General Brian Frosh the authority to sue the federal government without his permission as a usurpation of his power. No doubt he would like this issue to be about him so he could chuck it onto the pile of conflicts for which he has a well-worn response about Democrats in Annapolis who just can't handle having a Republican governor. But the measure, which won final passage in the House of Delegates today, is not about him. It's not even really about President Donald Trump, although his executive order on immigration and talk of other plans to roll back consumer protections and environmental regulations were the catalysts for the effort. What it is about is an unusual element of state law that prevents a duly elected constitutional officer, the attorney general, from exercising his duties to safeguard the interests of Marylanders in a way that virtually every other attorney general in the nation can.

Attorneys general in at least 41 states have what is known as common law authority to instigate or defend lawsuits on behalf of the state without asking anyone's permission. But courts here have interpreted Maryland's constitution as stripping our attorneys general of that authority and instead requiring that either the governor or the General Assembly authorize such an action. Usually, that's a mere technicality, but problems have cropped up at least once before when the governor and attorney general were of different political parties. In 2005, former Gov. Robert L. Ehrlich Jr. refused to let then-Attorney General J. Joseph Curran Jr. join in a lawsuit against the Bush administration's Environmental Protection Agency over regulations that would have exempted coal fired power plants from strict mercury pollution limits.


What brought the issue to the fore now is President Trump's ban on entry into the U.S. of refugees and citizens of seven Muslim-majority nations. Mr. Frosh asked Governor Hogan for permission to sue to stop what he sees as an unconstitutional act that directly harms Maryland residents, businesses and institutions of higher education. It's not that Mr. Hogan said no; after all, doing so would force him to take a side on something Mr. Trump has done, which he has studiously avoided. But he didn't say yes either.

Ultimately, this case may not be the one that truly underscores the need for Mr. Frosh to have independent authority to sue, as a number of attorneys general have already taken action on the immigration ban, most notably those in Washington and Minnesota whose case led a federal court to stop implementation of the order while the matter proceeds. Rather, it may be important for Mr. Frosh to have the ability to act in a case that affects Maryland particularly, and it's not hard to imagine what that could be.


Mr. Trump's choice to head the Environmental Protection Agency, Scott Pruitt, had the independent power as Oklahoma attorney general to sue the federal government, and he used it ... a lot — including an effort to block the Obama EPA's Chesapeake Bay cleanup plan. Since his nomination to head the agency, he has given off what could charitably be called mixed signals about his intent to enforce those rules, and it's entirely conceivable that Maryland would have a particular interest in trying to force the agency to keep other bay watershed states in line with pollution reduction requirements. We shouldn't be taking a chance on whether Mr. Hogan would support such a lawsuit.

The constitution gives the General Assembly the authority to authorize the attorney general to pursue litigation, and the joint resolution that passed today lists a wide set of issues related to consumer protection, health care, the environment, freedom of travel, civil rights and more on which the attorney general now has the independent authority to bring litigation.

Republicans have objected, arguing among other things that the measure would make it more difficult for Governor Hogan to secure the cooperation of the Trump administration to pursue the state's goals. But as Mr. Frosh pointed out, it actually allows the governor to wash his hands of any decisions about whether to sue the feds. He doesn't have to take a position on such matters, and when it comes to Mr. Trump, that seems to suit Mr. Hogan just fine.

Moreover, the Ehrlich-Curran example shows the "catch more flies with honey than lawsuits" approach has its limits. The Ehrlich administration made a similar argument then and even secured a meeting with the EPA administrator to try a cooperative approach toward the mercury pollution issue. It failed. The lawsuit, however, resulted in a 2009 consent decree setting new rules for mercury, soot and other contaminants.

We don't think Mr. Frosh or any other Maryland attorney general ought to be spending all his or her time suing the federal government. It's an authority that shouldn't be taken lightly, but it's one he and his successors ought to have. We elect attorneys general to represent our interests in court. We needed to give them the power to do it.