As President Joe Biden issued more than 40 executive actions with less than a month in office and Democrats took control of Congress, Republican attorneys general in the states appear poised to be the strongest check on overreach by the federal government.
“Everything is fair game. We are going to defend the Constitution of the United States and look out for the best interests of our states,” Georgia Attorney General Chris Carr, chairman of the Republican Attorneys General Association, told The Daily Signal.
“It’s not just lawsuits, but also working with members of Congress,” Carr said. “And we will try to work with the administration.”
Montana Attorney General Austin Knudsen led 13 other attorneys general Tuesday in calling on Biden to reconsider his first-day revocation of a permit to construct the Keystone XL oil pipeline from Canada to Nebraska.
Knudsen advised the president that states are reviewing legal options to “protect our residents and sovereign interests.”
“Your decision will result in devastating damage to many of our states and local communities. Even those states outside the path of the Keystone XL pipeline—indeed all Americans—will suffer serious, detrimental consequences,” Knudsen and the other attorneys general write to Biden, adding:
In Montana, for instance, killing Keystone XL will likely cost the state approximately $58 million in annual tax revenue. Montana will lose the benefits of future easements and leases, and several local counties will lose their single-biggest property taxpayer. The loss of Keystone XL’s economic activity and tax revenues are especially devastating as five of the six impacted counties are designated high-poverty areas.
Also signing the letter are the attorneys general of Alabama, Arkansas, Georgia, Indiana, Kansas, Louisiana, Mississippi, Missouri, North Dakota, South Carolina, South Dakota, Texas, and West Virginia.
Texas Attorney General Ken Paxton last month scored an early win against the Biden administration by halting the 100-day “pause” in deportation of illegal immigrants. Arizona Attorney General Mark Brnovich sued last week to permanently upend Biden’s halt of deportations.
Biden also signed executive orders to change other aspects of immigration policy, including stopping construction of the border wall. An executive order itself isn’t grounds for litigation until the government implements the action.
Pressuring the federal government to enforce its own laws will be one goal for the Republican Attorneys General Association, said Missouri Attorney General Eric Schmitt, vice chairman of the group.
“He’s not enforcing immigration laws,” Schmitt said of Biden in an interview with The Daily Signal. “Their idea is to make it easier to come here illegally. The policy of not enforcing the law, we have a hard time wrapping our minds around that.”
Attorneys general from West Virginia, Arkansas, Indiana, Mississippi, Montana, and Texas already have issued a formal warning to the president, making it clear they intend to defend the First and Second Amendments to the Constitution.
“The growing and dangerous hostility to the free exercise of religion in recent years … is appalling,” says the letter to Biden from six Republican attorneys general, led by West Virginia’s Patrick Morrisey. “As president and as a man of faith, we hope that you will ensure your administration accommodates and respects the free exercise of religion and complies with both the Constitution and the Religious Freedom Restoration Act.”
The letter adds:
The Second Amendment guarantees the right to keep and bear arms is part of the Constitution that your oath requires you to preserve, protect and defend. We are dismayed at your stated intentions to impose numerous limits and burdens on ownership of firearms. You can expect strenuous opposition from us against any such efforts.
Republican attorneys general came of age as a national force during the Obama administration where Biden served as vice president, banding together to challenge policies such as the Affordable Care Act.
Although the Supreme Court upheld the constitutionality of the law creating Obamacare, the attorneys general helped topple certain aspects such as requiring all employers to cover contraception and abortion-inducing drugs, even if they objected on religious grounds.
They also filed lawsuits and gained victories against the Obama administration’s Clean Power Plan, its Waters of the United States rule, and its overtime rule; protected state right-to-work laws; and defended private property rights from Critical Habitat Designations.
Similarly, during the Trump administration, Democratic attorneys general routinely sued the federal government over policies such as immigration and health care.
“I would expect Republican attorneys general to take action against the Biden administration, just as they did against the Obama administration and as Democratic attorneys general took action against the Trump administration,” John Malcolm, director of the Meese Center for Legal and Judicial Studies at The Heritage Foundation, told The Daily Signal. “We’ve already seen [Texas] Attorney General Paxton take action against the Department of Homeland Security.”
Energy issues under Biden are emerging as a major focus for attorneys general, Georgia’s Carr said.
“The energy executive orders the president has issued are moving America away from energy independence,” Carr said. “The supply increase was driving down the cost of fuel. He is undoing those pro-growth policies and hitting people in the pocket. … The Keystone pipeline is of great interest to me as not only an attorney general but as a former commissioner of economic development.”
Attorneys general plan to send a letter to the Biden administration regarding its cancellation of the Keystone XL pipeline that killed more than 11,000 American jobs—including 8,000 union jobs. It also affected $1.6 billion in U.S. wages. Litigation likely will follow the president’s action.
On another front, Biden’s executive action to reenter the Paris Agreement on climate change is estimated to cost millions of U.S. jobs over the next decade.
Biden also signed an executive order to “pause” oil and natural gas extraction from federal lands and waters.
“The Biden administration needs an education on what federalism really means,” Missouri’s Schmitt told The Daily Signal, adding:
America really achieved energy independence in the heartland. His actions on energy don’t just affect jobs. It will make it more expensive to build roads and heat homes. … He wants to curb [carbon] emissions in the United States, but is not interested in holding anyone else accountable, including China.
Last week, Ohio Attorney General Dave Yost led a group of 20 attorneys general in a legal brief asking the U.S. Circuit Court of Appeals for the District of Columbia to continue considering a lawsuit challenging California’s fuel economy waiver under the Clean Air Act.
The Biden administration has requested that the litigation be halted.