A coalition of state attorneys general on Wednesday sent a letter to President Joe Biden reminding him that any potentially unconstitutional executive actions or federal overreach will not go unchallenged.
The letter, signed by six attorneys general (AGs), puts the Biden administration on notice that any actions that might exceed their statutory authority, are inconsistent with constitutional tenets, or place civil liberties at risk could trigger legal action by the states.
“We stand ready to meet with your administration to discuss more how the issues below affect our States; litigation is never first option, and we would like to help your team in its important job on behalf of all Americans, consistent with the Constitution and the rule of law,” West Virginia AG Patrick Morrisey, who is leading the group, wrote in the letter addressed to the White House (pdf).
“Yet if you sign unconstitutional laws passed by Congress, it will be our responsibility and duty to challenge those laws in court. If cabinet officials, executive officers, and agencies go beyond the bounds of their statutory authority, fail to follow legally required procedures, or fall short of the bedrock Administrative Procedure Act obligation of reasoned decision making, it will likewise be our responsibility to take action.”
The Administrative Procedure Act, or APA, is a federal law that governs the process for agency rulemaking and has been frequently invoked to challenge executive branch rules and regulations.
Morrisey is joined by AGs from Arkansas, Indiana, Mississippi, Montana, and Texas.
It comes as Biden issued a series of executive orders in his first week since taking office. Some of the executive orders have overturned Trump-era policies, while others have established or expanded policies relating to climate change, racial equity, and the CCP (Chinese Communist Party) virus pandemic.
Some of the orders have already drawn widespread scrutiny, such as the decisions to rejoin the Paris Climate agreement and to cancel the Keystone XL Pipeline, which is expected to put thousands of jobs at risk and undermine the U.S. relationship with Canada. The Biden admin has also met with backlash for embracing a quasi-Marxist critical race theory in its policies seeking to prioritize certain racial groups that have historically met with disadvantage over others.
Similarly, Biden’s order addressing discrimination on the basis of gender identity and sexual orientation is expected to threaten the constitutional freedom to exercise one’s religious beliefs for individuals and organizations who affirm the traditional understanding of human persons as created biologically male and female.
“The President cannot cut constitutional corners or shirk statutory strictures without inevitably doing more harm to our country than good,” the AGs wrote. “The foundations of our republic and American life are embedded within our Constitution’s carefully crafted design.
“Accordingly, today by this letter we respectfully urge you when pursuing your policy priorities to honor the core constitutional tenets which should be appreciated and respected by every person entrusted with the honor and burdens of the presidency,” they wrote to Biden.
The letter notes the freedom of religion and religious expression, and the right to bear arms as two areas of concern.
The AGs said that while there is always pressure for U.S. presidents and Congress to exceed their power “lest they be judged to be ignoring important issues or failing to address critical problems,” it is a president’s duty to uphold the U.S. Constitution’s separation of powers as well as respect the sovereignty of the states.
They added that limits on federal power are not a flaw of the Constitution and that when certain issues that are excluded from the federal sphere need to be addressed, the “states are ready and able to do the job.”
The Biden administration has already faced several legal challenges over its executive actions. A federal judge in Texas temporarily blocked Biden’s executive order to halt the deportation of certain immigrants for 100 days. The order is seen as a setback for the administration, which had campaigned on implementing far-reaching immigration changes, including a plan that would legalize about 11 million illegal immigrants.
Earlier on Wednesday, Western Energy Alliance, a group representing fossil fuel producers on federal lands, challenged Biden’s executive order aimed at halting oil and gas leasing on federal lands and waters.
Legal challenges against presidential orders are not uncommon. During former President Donald Trump’s four years in office, Democrat AGs frequently sued his administration on a range of executive actions and regulations in the area including health, climate, and immigration.
According to a website run by Dr. Paul Nolette, associate professor of political science at Marquette University, who tracked the lawsuits against the former president, the Trump administration was sued 157 times in cases where states were initial plaintiffs, successful intervenors, or in single state lawsuits.
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