The Role of State Attorneys General in National Health Care Reform-Advocating for the Will of the People or for their Party?

Unless you’ve been living under an exceptionally large rock lately, you have been subjected to renewed national debate about the merits of the Patient Protection and Affordable Care Act (PPACA).   The PPACA, with its expressed goals of expanding health care access to more Americans, providing additional program choices, and reducing health care costs, was signed into law on March 23, 2010.  Several lawsuits were filed challenging the constitutionality of the Act. In June of 2012 the U.S. Supreme Court held that the individual mandate, a key provision of the Act, was constitutional, allowing the health care law to advance toward implementation.  As we watch this process unfold, new legal challenges have emerged to delay or block adoption of the PPACA.  Many of these lawsuits are being filed on behalf of individual or joined states by their respective Attorneys General.  Given the partisan spectacle recently witnessed over the government shutdown and the debt ceiling, should we question the motivation behind these lawsuits? Are the State Attorneys General (SAG) advocating on behalf of their states’ interests or at the behest of their political parties?

It would be instructive to review the role of the State Attorneys General before answering these questions.  Every Attorney General is considered to be the chief legal officer of his or her state.  Duties include: representing the state, its officials, departments and agencies in all cases involving the state’s interest; advising the governor, the legislature, and state officials on questions of law and public policy, and issuing formal and advisory opinions on matters originating from executive, administrative, and legislative actions.

While many legal or policy issues that arise may be unique to an individual state, others may benefit from a regional or national response.    The National Association of Attorneys General (NAAG) was founded in 1907 to foster cooperation among the State Attorneys General and encourage sharing of interstate resources and services.  Additionally, there has been a trend toward increased collaboration with their federal counterparts, partnering on issues involving state and federal regulation, enforcement, and implementation (e.g., the Patient Protection and Affordable Care Act, the National Mortgage Settlement, the Tobacco Master Settlement Agreement, the Anti-Human Trafficking Task Force).   Ideally, these interstate and state/federal alliances will promote nonpartisan implementation and enforcement.

But can we really expect political neutrality on the part of our State Attorneys General in executing their duties? One must truly be a student of local government to discern an answer.  One factor to consider is how we select these 50 state chief legal officers.  According to NAAG, they are elected independently in 43 states by popular vote.  In five states, they are appointed by the state governor (Alaska, Hawaii, New Hampshire, New Jersey, and Wyoming).  In Tennessee, the state supreme court makes the selection, and in Maine, the state legislature.  Terms vary but most SAG are elected or appointed for a fixed time period.  However, in Alaska and Wyoming, that individual serves “at the pleasure of the governor.”  In Hawaii, New Hampshire, and New Jersey, the governor appoints the State Attorney General, but cannot compel removal at will.

If a State Attorney General is elected, it is easier to imagine a degree of independence from any legal or public policy position taken by the governor, the legislative majority, or affiliated political party. But if that person is appointed or subject to removal,  deviation from the administrative or legislative party line seems less likely.

Another factor to consider is whether the Attorney General has higher political aspirations.  State Attorneys General frequently run for higher state or federal office (just look to the 2012 elections for multiple examples).   Positions that are more popular or politically expedient may be taken to solidify a campaign and financial contribution base.

It is interesting to note that there are currently 25 State Democratic Attorneys General and 25 State Republican Attorneys General.  The even split mirrors the polarization of our national political landscape.   If the recent contentious standoff in Congress is any indication, we can expect many legal and public policy battles to play out, whether intra-state between government branches, state against state, or state against federal jurisdiction.

The answer to our original provocative question-can our State Attorneys General advocate for the will of the people or for their party affiliates-will depend on your personal assessment of their performance as they defend or challenge implementation and enforcement of the PPACA to reform national health care.

To find your local Attorney General opinions, policy statements, pending litigation, and other resources on, select your State, then choose your Court Resource Category (Statewide Court Opinions and Orders, Statewide Self Help and Legal Research) to find links to state Attorney General sources.

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