Republican Attorney General Mark Brnovich wants the freedom to use his office to conduct conservative culture wars as he builds a culture warrior résumé to run in the Republican primary for governor or senator in 2022.
He has already done a good job of culture wars by filing lawsuits — approved by the governor’s office in most cases, e.g., seeking to overturn the Affordable Care Act aka “Obamacare” so that millions of Americans lose their health insurance coverage for preexisting conditions and expanded Medicaid (Arizona Republicans hated this); seeking to strike down the Deferred Action for Childhood Arrivals (DACA) program so that “Dear Leader” can deport children who have only known America as their home to their country of origin with which they have no familiarity; and seeking to carve out a “freedom to discriminate” card for religious bigots who want to deny public access and services to anyone whom their own “deeply held personal religious beliefs” leads them to hate others, e.g., the LGBTQ community (this slippery slope will readily lead to discrimination against anyone who is not a white evangelical Christian fundamentalist. What they really want is an exemption from complying with the laws that everyone else who is not a religious bigot must comply).
[It should be noted that the positions taken by AG Brnovich (and Governor Ducey) are not the positions supported by a majority of Americans or Arizonans. It is ideological extremism to placate a right-wing minority GOP base.]
But AG Brnovich got sideways with our culture warrior Governor Doug Ducey, however, when he sued the Arizona Board of Regents (ABOR) over tuition increases resulting from our Republican-controlled Arizona legislature drastically reducing higher education funding over the last decade after the Bush Great Recession in 2008. (Legislative funding levels have still not returned to precession per student funding levels). Governor Ducey reportedly did not support this lawsuit.
So now AG Brnovich is seeking to free himself from the constitutional constraints imposed on his office by the Arizona Constitution. The Arizona Capitol Times report, Brnovich plans to seek change in law he says handcuffs him:
A 59-year-old court ruling has stymied Brnovich’s efforts to – as he puts it – hold the Arizona Board of Regents accountable for their actions, namely the steep increases in tuition rates for students at the state’s three public universities. [Brnovich is passing the buck from our Republican-controlled Arizona legislature to ABOR in a deeply cynical and dishonest move.]
But that case, in which Brnovich argues the regents have violated a constitutional provision that tuition must be kept nearly as free as possible, has diverted into a broader discussion of the powers and duties of the elected attorney general. [Sorry, no. Our Republican-controlled Arizona legislature has for years violated this constitutional provision without being held accountable either in court or, sadly, at the ballot box by the voters.]
As Brnovich sees it, he’s an attorney by the people and for the people. Brnovich spokesman Ryan Anderson said it doesn’t matter your political stripes – be you Republican, Democrat, independent or whatever. “If you feel that the attorney general should be an independent umpire, a defender of taxpayers and enforcer of the Constitution and the law,” Anderson said, you should support the Supreme Court overturning their ruling in the case of the Arizona State Land Department v. McFate.
That ruling, made in 1960, affirmed boundaries in state law for what an attorney general can and cannot do.
Specifically, while the justices found that there are “occasions” when the attorney general can unilaterally file a lawsuit on behalf of the state of Arizona – that is, its citizens – “those instances are dependent upon specific statutory grants of power.”
Put another way, Brnovich can’t sue a state agency he believes is acting outside the scope of state law or the Arizona Constitution without the express written permission of the Legislature in law, or the permission of the governor, Anderson said.
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The Arizona Court of Appeals on August 20 struck down Brnovich’s attempt to sue the Board of Regents over tuition issue on the grounds that the attorney general has no authority to bring the lawsuit under state law. But in doing so, the appellate court also signaled their belief that the Supreme Court should reconsider the McFatedecision that bound them to throw out Brnovich’s lawsuit.
Brnovich’s deadline to appeal to the Arizona Supreme Court is September 19.
Not everyone is a fan of AG Brnovich’s argument. Resident GOP apologist at The Arizona Republic, Robert Robb, takes issue with AG Brnovich, making the reasonable argument that “the attorney general is supposed to be the state’s lawyer. He shouldn’t get to be the client as well.” Why should Mark Brnovich decide where Arizona stands on DACA and Obamacare?
[This] raises again the question of who should call the shots on what position the state takes on legal issues. After all, Brnovich isn’t representing himself. He is purporting to represent the State of Arizona.
There are arguably some constraints on what Brnovich can do in state court. A state Court of Appeals recently held that he couldn’t sue the universities over tuition rates.
State statutes, however, give him unbridled authority in federal court proceedings. But why?
In the DACA case, Brnovich simply joined an amicus brief, an advisory exhortation. So, the legal import isn’t that great.
Shouldn’t Ducey, lawmakers have a say?
But Brnovich signed the State of Arizona up as a plaintiff in a case asking that Obamacare be tossed out in its entirety as unconstitutionally enacted.
That would have devastating consequences for Arizona’s Medicaid program. The state relies heavily on the increased federal funding that was part of Obamacare. And a state hospital bed tax that also funds the program is contingent on the continuation of the increased federal funding.
Given the monumental consequences, should Brnovich have plenary authority to decide what position the state takes in court on the issue? If Brnovich’s lawsuit is successful, it would be the governor and the Legislature that would have to cope with the gigantic hole blown in Medicaid’s finances.
Attorneys general, present and past, claim inherent constitutional authority, but that’s a canard. All the state constitution says is that the powers and duties of the attorney general “shall be as prescribed by law.”
The Legislature should address the question of who decides what position the state takes in legal proceedings. The attorney general is supposed to be the lawyer. He shouldn’t be the client as well.
The Arizona Supreme Court should not rewrite the Arizona Constitution or the precedent of Arizona State Land Department v. McFate, or legislate from the bench in order to placate a politically ambitious AG Brnovich.