Salem Radio Network News Monday, December 6, 2021

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Attorneys general are the first line of defense

Martha’s Vineyard is a surprising venue for a gathering of the Republican Attorneys General Association (or “RAGA,” as it’s affectionately known), but given the ubiquity of political surveillance these days, perhaps a geographical head fake is good operational security.

Not that a DNC tracker would have been surprised by much they heard there — except perhaps the heartfelt tribute offered to a Democratic state attorney general, the late Beau Biden, offered by another citizen-soldier state attorney general, South Carolina’s Alan Wilson.

Party divisions are of course deep, and policy disagreements genuine and enduring, but it was obvious to this outsider that affection and esteem among professionals separated by party aisle remains a rule and not an exception when it comes to the untimely death of a public servant and a man who wore the uniform as well as filled the office.

My job at this gathering was to survey the presidential field, to urge the attorneys general to build the party’s legal bench by hiring 20-somethings fresh out of clerkships and throwing them the tough cases, and to highlight two incredible challenges facing every AG — and especially Republican AGs — as two perfect storms descend upon their jobs.

My law firm, Arent Fox, has expertise in contesting election recounts and in advising on legislative redistricting. In this latter area the Supreme Court has already issued one of two cart-overturning decisions due this term. A third -—- which will decide who exactly is included in the term “one person one vote” — will come next term. Almost every state legislative and congressional district will be buffeted by these decisions, and no legislator’s district is safe in its boundaries. New maps could begin to explode on the scene by the 2016 elections — maybe in many states. Perhaps in all of them by November of 2018.

Even as the AGs must superintend compliance with these new directions from the Supremes, they have to battle alone or in concert, a massive power grab by the Environmental Protection Agency in the form of its new definitions of what the agency claims to be a “water of the United States,” and thus within EPA’s regulatory authority to order left untouched or developed only as the EPA deems fit and only in exchange for “mitigation” the EPA deems adequate.

This astonishing, power-grabbing rule — I told the AGs that overwatering of plants could bring a backyard under the EPA’s asserted control of standing water results — so upends the intention of the 1972 Clean Water Act that reversal by any fair-minded court would seem certain. But recall Harry Reid facilitated the packing of the key federal appeals court — the Court of Appeals for the District of Columbia Circuit — with President Obama’s hyper-activist appointees last year by breaking the judicial filibuster rules.

If the AGs are going to battle back in the defense of their states’ landowners, and indeed to protect their own state’s lands, they will have to launch dozens of suits in circuits far from D.C., pushing those federal courts to just say no to the EPA in every category of wetland, water and pool now within the EPA’s newly asserted power.

The EPA is not an agency interested in what the Congress or courts tell them; it is interested in the loopholes left them. These holes must all be plugged, and it will be the state AGs who do the heavy lifting here.

It used to be that state attorneys’ general offices were seen as mere way-stations on the way to the state houses. They remain that, of course, but in the Obama Era of Leviathan federal agencies, they remain the first line of defense for property rights and fair elections.


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Fri, Dec 3, 2021