Assembly moves quickly to give Frosh authority to sue Trump administration

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The Maryland General Assembly is moving quickly to expand the power of the attorney general to sue the Trump administration without Gov. Larry Hogan's permission.

Acting with uncommon speed, the state Senate gave final approval Friday to a joint resolution broadening the authority of the state's chief lawyer. Within hours, a House of Delegates committee approved it, sending the measure to the floor for a vote next week.


The resolution would give Attorney General Brian E. Frosh, a Democrat, the green light to sue the new Republican administration in federal court over a broad range of potential disputes.

Under current law, Frosh could sue with Hogan's permission. Frosh said Friday that he asked the Republican governor nine days earlier for the go-ahead to sue over Trump's freeze on immigration from seven Muslim-majority countries, but hadn't received an answer.


"There's been a firestorm. I think it's dangerous for us to sit around and wait," Frosh told the House Rules Committee. He cited the travel ban and potential changes at the Environmental Protection Agency that could affect the Chesapeake Bay as areas of concern.

After Frosh asked Hogan for permission to file a lawsuit, the governor's office asked for more information. The attorney general's office provided it, but did not receive a response from the governor's office before Frosh filed a "friend of the court" brief in Washington state's suit against the travel ban.

Hogan spokeswoman Amelia Chasse said the governor's office did not respond because it assumed Frosh had decided to go that route on his own.

At a news conference later Friday, Hogan called the Senate vote "unfortunate, rank partisanship."

"I don't know why you have to change the rules now that we have a Republican governor, but they've been doing quite a bit of that lately," he said. "I would rather not see that kind of political operation going on and just focus on the problems in the state."

Under the resolution, the legislature would exercise its constitutional authority to grant permission to sue. As a joint resolution, unlike a typical bill, the measure cannot be vetoed by the governor.

Democrats contended that the state urgently needs to empower its chief lawyer to stand up for the interests of Marylanders on such matters as immigration, health care and the federal workforce.

Republicans argued that the delegation of authority was so sweeping that it would be unconstitutional. They also argued that it was a political shot directed at Hogan.


After the vote, Senate President Thomas V. Mike Miller noted that the General Assembly didn't act to expand the attorney general's authority during the first two years of Hogan's term, when Barack Obama was in the White House.

"It's not about Larry Hogan. It's about Donald Trump," Miller said. The Calvert County Democrat said his constituents, particularly those from Prince George's County, have told him they were scared of the Trump administration's actions.

The Senate vote was 29-17, with three Democrats joining the Republican minority in voting against.

The resolution is on a fast track dictated by the Democratic supermajority in both chambers. The Senate vote came the day after two-thirds of the Republican caucus walked out of the chamber in protest of the majority's refusal to grant a usually routine delay to prepare amendments.

The walkout in the typically collegial Senate "broke my heart," Miller said afterward.

Senators on Friday returned for more than two hours of civil debate — most of it focused on the merits of the legislation.


Senate Minority Leader J.B. Jennings noted that there was no sunset on increasing the attorney general's power to sue the federal government. He warned that a future attorney general could "go rogue" while the legislature was not in Annapolis, leaving no alternative but a special session to rescind that authority.

"I don't know why we're doing it so quickly, why we're doing it as a resolution, why we're not doing this as a bill," said Jennings, who represents Baltimore and Harford counties.

Sen. Robert G. Cassilly, a Harford County Republican, warned that the attorney general's office would be "a very powerful position, left unchecked."

"He would effectively have not only the fourth branch of government but the most powerful branch of government," Cassilly said.

Sen. Wayne Norman, a Republican who represents Harford and Cecil counties, suggested that Trump could retaliate for the resolution by picking a site in Virginia for the new FBI headquarters, which Maryland officials have sought.

"I truly think this joint resolution is going to kibosh that," he said. Why would Trump "give Maryland anything?"


Sen. James C. Rosapepe said the implication of Norman's statement was that Trump would violate federal procurement law to deny Maryland jobs for "partisan, political reasons."

The Prince George's County Democrat said that possibility underscores the need to give the Maryland attorney general more latitude to sue, instead of just filing briefs in suits brought by other state attorneys general.

"You need your own lawyer. You don't rely on the other guy's lawyer," Rosapepe said.

At the House committee hearing, Minority Leader Nic Kipke asked Frosh, a former state senator, to respond to allegations that political gamesmanship was driving the request to expand his authority.

"All I can say about the charge that it's motivated by politics is — it ain't so," Frosh said.

Kipke, who represents Anne Arundel County, said stripping Hogan of the sole authority to sue the federal government would weaken his ability to negotiate with the White House on matters that benefit Maryland, such as the FBI headquarters.


Frosh disagreed.

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"You can certainly say this gives the governor a stronger hand," Frosh said. "He doesn't have to take the blame for suing the federal government."

Frosh told lawmakers his office didn't have the resources to file a lot of legal actions.

"We don't have the capacity to bring lots of lawsuits," he said."I'm not sure we'll bring any lawsuits."

A companion measure, introduced as conventional legislation, would require the governor to allocate an additional $1 million in future budgets to cover the additional expenses of potential lawsuits. That bill is scheduled for a House committee hearing on Wednesday.

Baltimore Sun reporter Luke Broadwater contributed to this article.