State attorneys general have spent 2021 leading legal battles against what they and many others contend are numerous instances of federal overreach imposed by President Joe Biden’s administration in violation of the U.S. Constitution. These attorneys general have been victorious in multiple cases already this year and more are on the horizon, with their latest win coming on Tuesday, November 30, when Judge Terry A. Doughty of the U.S. District Court Western District of Louisiana ruled in favor of Louisiana Attorney General Jeff Landry’s (R) move to stop the imposition of the Centers for Medicare and Medicaid Services (CMS) vaccination mandate for almost all full-time workers and part-time workers, as well as contractors and volunteers who work in facilities or on projects that receive Medicare or Medicaid funding.
"If the executive branch is allowed to usurp the power of the legislative branch to make laws, two of the three powers conferred by our Constitution would be in the same hands," Judge wrote in his ruling. "If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency.
That victory for Attorney General Landry and 13 other state attorneys general followed another win in federal court the day prior for a coalition of state attorneys general. On November 29, U.S. District Judge Matthew Schelp of St. Louis ruled that CMS cannot enforce its vaccine mandate for healthcare workers until a lawsuit challenging the mandate brought by 10 attorneys general can be heard by the court.
"Congress did not clearly authorize CMS to enact this politically and economically vast, federalism-altering, and boundary-pushing mandate, which Supreme Court precedent requires," Judge Schelp wrote in his decision. Schelp’s ruling, which applies to the 10 states whose attorneys general filed the suit, comes a little more than two weeks after a New Orleans federal appeals court blocked the vaccine mandate for companies with 100 or more workers that the Biden administration has tasked the Occupational Safety and Health Administration (OSHA) with carrying out. Other vaccine mandate-related lawsuits are pending, as the Biden administration’s mandates for military personnel, federal employees, and government contractors are also being challenged in court.
The first lawsuit against Biden’s OSHA vaccine mandate was brought by Arizona Attorney General Mark Brnovich (R) in September, a case that is still pending. General Brnovich already achieved a high profile legal victory over the White House this year with the U.S. Supreme Court ruling in his favor in Brnovich v. Democratic National Committee. In that case the DNC unsuccessfully sought to overturn an Arizona law that prohibits ballot harvesting and out-of-precinct voting. After successfully defending his state’s authority to set election standards, General Brnovich is now working to overturn a national vaccine mandate that he sees as both unduly burdensome on employers and unconstitutional.
“I have been saying that this unconstitutional COVID-19 vaccine mandate will cost honest and hardworking people their livelihoods, and that’s unacceptable,” Attorney General Mark Brnovich said on November 22. “It would also be a terrible injustice to our first responders who have always been there for us. If allowed to stand, this mandate will ultimately jeopardize all Arizonans who depend on these brave men and women to keep our communities safe.”
Federal vaccine mandates and the numerous legal challenges to them are not the only front on which attorneys general have prevailed in court recently, to the White House’s chagrin. On November 16, New Hampshire Governor Chris Sununu and Attorney General John Formella announced that New Hampshire and twelve other states had prevailed in preserving the ability to cut state taxes.
Late in the day on Monday, November 15, the United States District Court for the Northern District of Alabama issued an order granting the 13 plaintiff states’ request for a permanent injunction against the provision in the American Rescue Plan Act (ARPA) that seeks to block state tax cuts. As a result of this ruling, the federal government is barred from enforcing the ARPA tax cut prohibition against the 13 states listed as plaintiffs.
“The ARPA Tax Mandate was an improper and unconstitutional intrusion on the rights of New Hampshire’s elected policymakers to make decisions regarding State tax policy,” said New Hampshire Attorney General John Formella. “We are grateful that the Court agreed with our position and that the State of New Hampshire’s sovereignty will remain protected.”
Aside from New Hampshire, the 12 other states that initiated this successful legal action to block ARPA’s ban on state tax cuts are Alabama, Arkansas, Alaska, Florida, Iowa, Kansas, Montana, Oklahoma, South Carolina, South Dakota, Utah, and West Virginia.
“This ruling is a win for the taxpayers of New Hampshire,” said Governor Chris Sununu. “Despite threats from Washington, we continued to cut taxes — and won. This decisive ruling shows NH will continue to chart our own path and will not be dictated by the mandates coming out of Washington.”
That November 15 ruling was the latest, but not the first court victory for state attorneys general who have filed lawsuits seeking to block ARPA’s prohibition on state tax cuts as unconstitutional. In a case brought by the attorneys general of Tennessee and Kentucky, federal district court Judge Gregory Van Tatenhove ruled on September 24 that ARPA’s ban on state tax relief is unconstitutional.
“The court’s ruling returns the power to establish tax policy to the Kentucky General Assembly where it belongs,” Kentucky Attorney General Daniel Cameron said following the ruling in his favor. “It is unconstitutionally coercive for Kentucky’s acceptance of federal COVID relief dollars to be contingent on the federal government’s tax mandate. I was proud to defend the Commonwealth’s rights in this important case.”
That September ruling came two months after Ohio Attorney General David Yost’s lawsuit seeking to strike down ARPA’s ban on state tax relief also received a favorable ruling in federal court.
"It is only when a state official is 'unable to ascertain' the obligations that a conditional grant imposes, that constitutional problems arise," U.S. District Court Judge Douglas Cole wrote in his July ruling on the case brought by Attorney General Yost. "The Tax Mandate, even when read in context, fails to put the State on 'clear notice' of its obligations."
“The Biden administration reached too far, seized too much and got its hand slapped,” Ohio Attorney General David Yost said about the July ruling. “This is a monumental win for the preservation of the U.S. Constitution - the separation of powers is real, and it exists for a reason.”
There is hope that these legal battles will prompt some to reevaluate the appropriate balance of powers between the federal and state governments. Michael Lucci, a senior fellow at the State Policy Network and previously an advisor to former Illinois Governor Bruce Rauner, hopes that these lawsuits will “catalyze a swing in the pendulum of power away from Washington, D.C., and toward state capitols.”
In addition to being better suited to tackle certain problems than the federal government, most people have more confidence in state governments than the federal government. Lucci points to recent polling that shows Americans “trust the intent and competence of state and local governments far more than the intent and competence of the federal government.”
This past year has provided plenty of evidence that Alexander Hamilton missed the mark when he predicted in Federalist Number 17 that it would “always be far more easy for the State governments to encroach upon the national authorities” than vice versa. Yet, while Hamilton was wrong on that score, the aforementioned attorneys general who are now waging legal battle against numerous examples of federal overreach from the Biden administration are proving that Hamilton was correct when he wrote in Federalist Number 26 that state government officials “will always be not only vigilant, but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government.”
Hamilton went on to predict that state government officials “will constantly have their attention awake to the conduct of the national rulers, and will be ready enough if anything improper appears to sound the alarm to the people and not only to be the voice but, if necessary the arm of their discontent.” Hamilton’s prediction, made in 1787, is being proven still accurate in 2021 with the legal action taken by the likes of Mark Brnovich, Daniel Cameron, Herbert Slatery III, John Formella, David Yost, and other state attorneys general. Expect state attorneys general to remain on the front lines combatting federal overreach in 2022 and beyond.
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Attorneys General Continue To Succeed In Blocking Biden’s Federal Overreach - Forbes
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