In a speech well-tailored for his audience at the Brevard Hand-Alex Howard Chapter of the Mobile Federalist Society last week, Alabama Attorney General Steve Marshall discussed issues of federal overreach and constitutionality.
Marshall, who is currently campaigning to the keep the position he was appointed to by former Gov. Robert Bentley, focused his comments on the changing role of attorneys general in the United States and how those changes have impacted the work his office performs daily.
“Historically, the attorney general, not just in Alabama, has limited their role to what was occurring within their own state’s boundaries and didn’t see themselves as somebody that would impact or affect issues of national importance,” Marshall said.
Yet Marshall said that role began to shift in the 1990s around the time that a group of attorneys general filed a series of lawsuits against the tobacco industry.
Those lawsuits’ success resulted in a multi billion-dollar financial settlement, but more importantly, Marshall said, those actions were the first significant example of attorneys general “stepping outside of the criminal justice lane” to essentially bypass Congress and regulate an industry.
According to Marshall, that paved the way for other attorneys general to use lawsuits as a means to force federal agencies to change or adopt new regulations. That was the case in 2007 when Massachusetts successfully sued the Environmental Protection Agency, compelling it to label carbon dioxide as a pollutant under the Clean Air Act.
“They did so arguing that the state had a special standing to litigate issues of public importance, and the [U.S.] Supreme Court agreed,” Marshall said. “A controversial decision at the time, and one many conservative AGs didn’t agree with, and yet what we’ve seen is those same conservative AGs — including ones in Alabama — adopting the strategy for a different purpose.”
That purpose, instead of regulation, was deregulation through litigation, which a number of Republican attorneys general have used as “a check on the federal government’s ability to regulate,” according to Marshall. No stranger to the practice, Alabama joined several multi-state lawsuits targeting regulations deemed to be “overreaching” during the Obama era.
Most notable were the lawsuits that challenged and successfully blocked the “Waters of the U.S” rule, which expanded the EPA’s authority under the Clean Water Act as well as a Department of Labor directive on overtime pay and a Department of Education policy governing the bathrooms students are allowed to use at educational institutions that receive federal dollars.
Since President Donald Trump took office, however, the roles have reversed, as more liberal attorneys general have started using lawsuits to challenge policy changes enacted through executive orders. Despite being a Republican, Marshall said, he views the proper relationship between state and federal government as one of “principle, not partisanship.”
“Even when we have friends in Washington, litigation and threats of litigation can be useful to call something to their attention and prompt them to do the right thing,” he said. “We’re not going to agree with President Trump on everything. Sometimes the Trump administration will do something that overreaches into the the sphere of the states, and when it does, we’ll join in litigation against the administration just as we would have done against Hillary Clinton.”
In fact, under Marshall’s leadership, Alabama recently joined 10 other Republican states threatening legal action against the Trump administration for its “failure” to roll back expansions to the Deferred Action for Childhood Arrivals (DACA) program.
Marshall said his position on the program, which grants work permits to undocumented immigrants who arrived in the U.S. as children, isn’t based on “empathy” or a “belief” about the people who work in this country under DACA, but on the principle that immigration policy is “a congressional decision, not one that should be decided by executive order.”
In a letter sent in June, attorneys general from those 10 states gave the Trump administration until this week to make a decision on DACA. On Sept. 5, U.S. Attorney General Jeff Sessions officially announced the program will end following a six-month delay in enforcement so Congress can take up the issue legislatively.
“Whether everyone agrees or not, we’ve reached a point in this country where AGs can have a significant impact on national policy by regulation through litigation, spurring the federal government to act, and by blocking the federal government through certain actions,” Marshall said. “The end goal is not conflict for conflict’s sake, but, as Alexander Hamilton put it, ‘To form a double security to the people by preventing either government from overpassing their constitutional limits by a certain rivalship.’”
Alabama v. Birmingham
Though Marshall focused primarily on the role his office plays nationally, he also discussed a controversial state-level issue: Confederate monuments and a recently passed Alabama law that prohibits their removal or obstruction.
A long-standing issue in Southern states, monuments and statues honoring Confederate soldiers were thrust back into the news after violent protests of a decision to remove a statue of Robert E. Lee last month in Charlottesville, Virginia. However, with the passage of the Alabama Memorial Preservation Act earlier this year, it’s against the law to “remove,” “alter” or “disturb” any monument in place for more than 40 years.
With a reignited interest in removing symbols of the Confederacy, the city of Birmingham ordered a monument to Confederate soldiers in one its parks to be covered in an attempt to bypass the law while searching for a legal way to remove it permanently.
Marshall’s office quickly filed suit against the city of Birmingham. In Mobile — another city with historical ties to the Confederacy — he said his decision was strictly about “enforcing the law.”
“My job is not to provide my personal belief about what should or shouldn’t happen, but when a law is lawfully passed, I’m there to enforce it,” Marshall said. “I expect we’ll see [this case] go up to the appellate courts to give guidance to other municipalities going forward.”