Attorneys general and the separation of powers

DACA expired on March 5.  Or maybe not.

DACA, Deferred Action for Childhood Arrivals, is the federal program that protects undocumented immigrants who were brought to the United States as children. It was enacted as a regulation by President Obama, and President Trump declared that it would be discontinued effective March 5. Some federal courts, in response to lawsuits filed by state attorneys general, have ruled against termination. The US Supreme Court has decided not to intervene.

New Mexico attorney general Hector Balderas has joined with his counterparts in 15 other states and the District of Columbia to ask courts to prevent ending DACA.  It appears DACA will remain in force temporarily.

Attorneys general from multiple states have banded together, issue by issue and lawsuit by lawsuit, to oppose policies of the Trump administration.  Balderas’ office is currently active in 15 such lawsuits, according to AG spokesman James Hallinan, and has filed amicus curiae (“friend of the court”) briefs in a number of others.

Four of these lawsuits involve methane.

Methane is a greenhouse gas, associated with climate change and pollution-related health effects.  It leaks from natural gas extraction, and a gigantic cloud of it called a methane hotspot sits over the Four Corners.

Rules to reduce methane leakage from industrial sources such as oil and gas wells were adopted by the Obama administration in 2016 and have been hard fought ever since. EPA administrator Scott Pruitt has delayed implementation, and states including New Mexico have challenged the delays.  As of now, according to Hallinan, the rules are in effect. That means oil and gas producers are required to comply and the EPA is required to enforce.

As long as one party or the other continues to file appeals, or until a case is decided by the US Supreme Court, none of these lawsuits is permanently concluded. And in some cases, as with the methane issue, different lawsuits are moving through different courts.

New Mexico is a participant in a suit related to the Affordable Care Act, demanding that the federal government keep its commitment to cost-sharing reduction payments; several suits related to environmental issues; and one challenging the federal Education Department regarding student loans.  That department has moved to freeze new rules intended to erase the federal loan debt of student borrowers who were cheated by colleges that acted fraudulently.

New Mexico recently joined other states on the issue of net neutrality, the move to preserve equal access to the Internet in the face of a recent ruling by the Federal Communications Commission.

New Mexico has filed amicus curiae briefs in support of litigation led by other states at the US Supreme Court level and in other federal courts. These briefs are on a range of issues of national importance such as redistricting, voting rights, the federal travel ban, LGBTQ rights and reproductive rights.

This type of intervention by state attorneys general is not new.  Several states sued the federal government during the Obama administration because they objected to the Affordable Care Act. One of those states was Oklahoma, whose Attorney General at the time was Scott Pruitt. Pruitt also sued the EPA 14 times when he was Oklahoma AG.

What constitutes abuse of power or illegal action by the federal government depends on viewpoint.  It’s a matter of picking your fights. State attorneys general, as independent elected officials, have the power to do that.

Like millions of Americans, I am concerned about the current climate in Washington: paralysis in Congress, disrespect for ethics and the rule of law, and the threat to our democracy from widespread lack of appreciation of the principle of separation of powers. State attorneys general have found a way to cut through this paralysis in addressing issues of national importance. They’re carrying those issues to the most deliberative process currently available, the courts.

Triple Spaced Again, © New Mexico News Services 2018

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