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Liberty's Last Line of Defense


New administrations of both parties have a tendency to try to accomplish their policy goals by executive decree. As the rush of a campaign meets the reality of governing, incoming presidents and staffers grow frustrated with the messy details of bicameralismand presentment—sign-off from both chambers and the president—required to enact newlaws. Having served in the Senate, I can understand the frustration.

But who is there to protect and defend the rule of law from an overeager new administration? State attorneys general, who are the last line of defense against federal overreach.

I served as Alabama’s attorney general. I’ve witnessed the power of state attorneys general when they unite to defend the Constitution and rule of law against edicts from executive-branch officials and fiats of unelected bureaucrats. State attorneys general have pushed back on the federal government’s clear overreaches in the Affordable Care Act’scontraceptive mandate, the Clean Power Plan, and the Waters of the United States rulewhen they threatened Americans’ liberties.

Attorneys general fall down in this duty when they practice partisanship—as did those who participated in the past four years of the “resistance.” These attorneys general rushed to court as a means to issue press releases or make political appearances in the media against their partisan opponents or in support of their political agendas. Attorneys general serve the nation best by making meritorious arguments grounded in the law.

When I served as Alabama’s attorney general and then as chairman of the Republican Attorneys General Association, the mandate was simple: Look to the Constitution, the law as written and the precedent. That is the attorney general’s role—to make sure the law is followed, not craft his own.

Most every state now boasts an office of solicitor general, stocked with top-flight lawyers who choose to serve in their state capitals, making arguments in federal courts to defend the rights of the states and their citizens. Over the course of the past four years, President Trump appointed 28 of these solicitors general and other high-level staff to the federal bench at the district and circuit levels. Thirteen alumni of state attorney-general offices were on the president’s Supreme Court list.

As the new administration takes shape over the coming weeks and as a new crop of officials try their hand running the behemoth that is the federal government, state attorneys general will be watching. They stand poised to act as the defenders of the rule oflaw on behalf of their constituents.

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