Maryland attorney general Frosh awarded expanded power to sue Trump administration

Erin Cox
Contact ReporterThe Baltimore Sun
Maryland's Democratic attorney general is now empowered to sue the Trump administration.

Democratic state lawmakers on Wednesday gave Maryland's attorney general broad authority to bypass the governor and sue the federal government on a range of issues, an unprecedented expansion of power for the office.

The action allows Democratic Attorney General Brian E. Frosh to challenge the administration of Republican President Donald J. Trump without first obtaining approval from Republican Gov. Larry Hogan or the Democrat-led General Assembly.

Lawmakers, spurred by what they say is the unique threat posed by Trump, are now weighing whether to give Frosh's office an additional $1 million a year and five more attorneys to fight the federal government.

Other Democrat-controlled states have mounted legal challenges to Trump's executive orders, including the ban on visitors from seven predominantly Muslim countries. Washington state successfully halted that ban with a lawsuit this month.

Before Trump's inauguration last month, California hired former U.S. Attorney General Eric Holder to challenge the federal government for $25,000 a month.

The Maryland General Assembly moved in less than two weeks to expand the authority of the state's top lawyer for the first time since 1864, when the job was re-established in the Maryland Constitution.

The legislature used its constitutional authority to direct the attorney general to grant blanket approval to sue the federal government at the attorney general's discretion on a wide range of issues.

"In these uncertain times, I think it's important for us to be armed and ready to respond," said Frosh, a former state senator who spent 28 years in the legislature before becoming attorney general in 2015.

Addressing lawmakers Wednesday, he said "I really hope we don't have to use the authority you all granted us."

The action is not subject to a veto by the governor.

Frosh had sought Hogan's permission to challenge the constitutionality of Trump's travel ban. The governor did not respond to the request.

GOP lawmakers objected to the legislature granting what they called unchecked power to the attorney general. At a time of great uncertainty, they warned, it could sabotage Hogan's ability to negotiate with the Trump administration.

"This is a good governor. He cares for the people of the state," House Minority Leader Nic Kipke said during floor debate. "It undermines his ability to work for what we have in Maryland."

Kipke warned that once such powers are granted, they're rarely revoked. He said a future attorney general could attempt to heighten his political prominence by using state resources to file publicity suits against the federal government.

Democrats were undeterred and at times impassioned about what they viewed as unacceptable moves by the three-week-old Trump administration.

"Our communities are in fear, across the state, and it is our duty as members of the General Assembly to fight for our constituents," said Del. Marice I. Morales of Montgomery County.

The House of Delegates passed the "Maryland Defense Act" on a strict party line vote Wednesday, 89-50. The Senate approved the same measure last week, 29-17, with three Democrats joining the chamber's 14 Republicans in voting against it.

Frosh sought Hogan's authority to contest the constitutionality of Trump's travel ban on Feb. 1, but the governor has not responded. Lawmakers had announced their plan to give Frosh permission to sidestep the governor the day before.

A spokeswoman for the governor said Hogan's attorneys requested additional information about the merits of Frosh's proposed lawsuit and were reviewing it.

Spokeswoman Amelia Chasse criticized the legislature for spending "more than two hours speculating and philosophizing over what might or might not happen in Washington, D.C. — instead of focusing on Maryland."

Until Wednesday, the governor and General Assembly reserved the right to decide when to sue the federal government. Maryland was one of nine states that did not grant autonomy to the attorney general through common law.

In Oklahoma, for example, state attorney general Scott Pruitt created a "Federalism Unit" in 2010 to challenge federal regulations, and used the office to sue the Environmental Protection Agency repeatedly on behalf of the oil-rich state.

Trump nominated Pruitt to lead the EPA.

Maryland lawmakers said they modeled the proposal to give Frosh more resources and attorneys after the size and scope Pruitt's five-attorney unit. That proposal, if enacted, would not take effect until July 2018.

In the meantime, Frosh said he would use existing resources in his agency's $30 million budget to evaluate potential lawsuits against the federal government. Already, he said, lawyers with other responsibilities are taking on extra assignments to research the constitutionality of some of Trump's executive orders.

The joint resolution allows Frosh to initiate a lawsuit against the government for a long list of action or inaction that the attorney general deems an infringement of Marylanders' rights to health care, civil liberties, economic security, environment, immigration or international travel.

It took effect Wednesday afternoon after Senate President Thomas V. Mike Miller and House Speaker Michael E. Busch, both Democrats, signed the resolution.

While putting his pen to the resolution, Busch quipped, "This is my Donald Trump moment."

Baltimore Sun reporters Michael Dresser and Pamela Wood contributed to this article.

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