Part of the genius of the American system of government is that its different components counteract and constrain each other. The state Senate, by passing Senate Bill 58 to remove the attorney general’s ability to file suits and advance arguments that may invalidate the General Assembly’s or the president’s actions, moves to prevent the US Constitution’s brilliant systems of federalism and checks from being fully realized.
An explicit and implicit guiding principle of the construction of the American government is that no single individual or body is permitted to govern alone. There will always be some other entity, whose interest in maintaining its own authority, that will block any other component from accruing too much influence. While we all may be familiar with the manifestation of this in the horizontal system of checks and balances at the national level, our nation’s commitment to federalism is a vertical manifestation, and states also impose their system of horizontal checks and balances.
The powers expressly granted to the federal government are not all given to the president. For example, the president has no authority to make laws alone — that is the job of Congress, as laid out in Article I. While President Donald Trump may be right that he “has an Article II,” he is wrong that it lets him do whatever he wants.
Even when Congress and the president are united, the Constitution further divides power and authority on distinct issues between the national government and the states, forestalling the most dramatic abuses of federal power. The 10th Amendment explicitly grants all powers not expressly given to the federal government to the states and people. While it can feel like Washington, DC, has unlimited authority — under broad interpretations of the Commerce Clause, reconstruction amendments, and due process — in reality, the states retain control over many crucial government functions.
Finally, neither the state nor federal governments can infringe upon the rights that we the people retain. Freedom of speech, religion, the press, assembly, protest, and the right to bear arms cannot be infringed upon. Our state constitution guarantees more, such as education and protection against taxation without representation.
For all of these constraints on the government — restrictions on the power of the federal government, restrictions on the power of the executive, and the security of our rights — to mean anything, it takes an active citizenry, an independent judiciary, and someone able to argue on behalf of those guardrails: a role the state attorney general fits well.
All of these agents, the citizenry, judiciary, and attorney general have important roles to play in enforcing these checks. The citizenry should decline to elect those who would trample on these safeguards. The judiciary can reinforce the meaning of these constraints by adjudicating disputes. The attorney general is empowered to file or support these cases, lending their expertise and credibility. Unfortunately, all of these are in decay.
Instead of safeguarding this system, the people have been increasingly willing to support candidates who show less and less respect for guardrails in exchange for officials who promise to get things done, come hell or constitutional high water. As a consequence of an increasingly anti-constitutional citizenry, the judiciary has been attacked, with constant salvos against the power and legitimacy of its members who prove unwilling to abandon these guardrails. Now, the General Assembly wishes to take away the attorney general’s power to support efforts to protect these guardrails in the first place.
Trump’s Executive Order 14160, attempting to redefine birthright citizenship, is a prime example. The people elected Trump even though (or partially because) he promised to end birthright citizenship, despite the commonly accepted meaning of the 14th Amendment. Judges who have issued injunctions against this unconstitutional action have seen fringe elements call not for appeals of their decisions but full-on impeachments. And now, in the aftermath of North Carolina, through the AG, joining a suit challenging this order, the General Assembly would handcuff the head of our Department of Justice, preventing him from even supporting this suit.
Potential abuses of this law are not hard to foresee should it pass. While there may be other states willing to sue the federal government in most cases (I shudder to think what might happen should North Carolina come under direct attack from the executive branch), the herculean task of stopping the General Assembly from violating federal or state law would fall squarely on the shoulders of the citizenry, and whatever private lawyers affected parties could find.
The founders intended for ambition to counteract ambition and for government, with all its power, to check government. Now, the General Assembly wants to prevent the person we elected to keep them in check from doing so. If Republicans in the General assembly don’t want the attorney general constantly challenging them or the president, they have two options: They can either moderate their actions, pursuing their policy goals through less contested means; or they can break their century-long drought in attorney general elections.
If they continue on this path, they may come to regret the day they inhibited our system of checks and balances should the tables one day turn, maybe with a Republican state attorney general unable to check a Democrat president with an active pen.