At the heart of our republic exists an often commented on, but seldom truly appreciated, tension between states’ rights and the role and purpose of the federal government. Now, what I — and others — describe as a “tension,” should not be understood pejoratively but instead as a kind of balance that, when correctly calibrated, allows America to prosper financially and Americans, for their part, to carve out a part of the Good Life as they see fit.
But (and this is no secret), more or less since the Woodrow Wilson and Theodore Roosevelt era, the scales have been tipped decidedly in favor of the federal government. The administrative state now encroaches way past anything resembling its enumerated powers and, with the blunt force of a Caterpillar bulldozer, slam-bangs into every nook and cranny of state affairs. Decisions regarding everything from education, environment and health care policy now involve some say-so from Washington — hardly the vantage point from which to issue wide-reaching edicts.
That’s the bad news.
The good news is recently, thanks to a rare combination of a willing and sensible White House and some incredibly talented, hardworking state civil servants, we just might be on the cusp of a return to the Madisonian conception of federalism.
The primary drivers of this revival are the staffs of the state attorneys general. These are the men and women who act as everything from state solicitors to assistant and associate attorney generals. They are the ones who, most in touch with the pulse of the affairs in their localities, bring suit, defend and uphold the rights of citizens across the Union. And it is this cohort, now (outstandingly!) numbering one in three members of our circuit courts, who can stem the power of the national bureaucracy for the best.
Take, for instance, my friend and former Texas deputy solicitor general Andrew S. Oldham, who was a part of President Trump’s stellar 11th wave of judicial nominees. Andy, who I am happy to note was confirmed just last month, served Texas Gov. Greg Abbott with distinction as general counsel, where he, back when Abbott was the state attorney general, fought tooth and nail to prevent President Obama’s Equal Employment Opportunity Commission’s mandate that companies could not impose blanket bans on hiring felons. Andy will, I know, showcase similar sensibilities as he serves as a circuit judge on the U.S. Court of Appeals for the 5th Circuit.
Or how about Carlos G. Muniz, former Florida deputy attorney general, who now serves as the Education Department’s general counsel, an agency desperately (and, perhaps, knowingly) out of touch with the on-the-ground needs of state education systems and unduly prejudiced against charter schools and school choice?
Throw in — and we can do this almost at random — folks like Tom Johnson, former West Virginia deputy solicitor general (now general counsel at the Federal Communications Commission) or Paul Ney, former Tennessee chief deputy attorney general (now general counsel at the Department of Defense) or Kevin Turner, former Alabama chief deputy attorney general, and you have the making of quite a ball team.
For people paying attention, the backgrounds of this talented bunch are no accident. As the Heritage Foundation’s Fred Lucas termed it, the former staff of the state attorneys general offices make one heck of a farm team. And that is no surprise, not only because the training grounds at the state level tend to toughen a body up for fights at the national level, but more important because good federal-level decision-making rarely happens without a well-articulated local perspective to inform it. It is so gratifying, then, to watch as this outstanding class of attorneys general staff swells the ranks of our federal judicial system with a much-needed influx of brains and moral rectitude.
Let me, however, end on a note of caution: Even with the goodwill of the Trump administration and more than enough Triple-A players ready for the majors, we can’t lose sight that the nomination process, a process that Democrats (and Republicans, alike) can slow-roll for any number of reasons, is a tough slog — and one where friends of attorneys general staff need to line up proudly with their squad.
