Hans Bader

Hans Bader is a senior attorney at the Competitive Enterprise Institute. Before coming to CEI in 2003, his prior practice included lawsuits involving the First Amendment, federalism, and civil rights issues.

They’re Not the Main Culprit

State attorneys general aren’t ruining federalism. It was already ruined, as Michael Greve’s 2012 classic The Upside Down Constitution chronicles. It is tempting to blame them, given how badly many state attorneys general behave. Some use their office to enrich themselves or their lawyer pals, or to pursue vendettas against adversaries. The attorney general of Pennsylvania, Kathleen Kane, was recently convicted of perjury, obstruction of justice, and abusing her office in her efforts to retaliate against a political opponent. In earlier times, Texas’s Dan Morales was jailed for mail fraud and tax evasion related to Texas’ multibillion dollar 1998 tobacco settlement.…

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More Responses

State Attorneys General Didn’t Start the Fire

The American form of government, in the classic formulation of Justice Salmon Chase, contemplates “an indestructible Union composed of indestructible States.”[1] The Constitution, apart from assigning specific functions to the federal government, and prohibiting the states from exercising certain powers, largely leaves the determination of public policy to the 50 states. As numerous jurists, statesmen,…

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Federalism and State Attorneys General

There are many challenges in designing a federalist system of government. Perhaps the most daunting is how to create incentives for government officials to preserve a regime of state-by-state decisionmaking—especially when constituent pressures, partisan allegiance, or ideological beliefs tug in other directions. The U.S. Constitution tries to preserve state prerogatives by enumerating the powers of the…

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State Attorneys General Remain Unsteady Allies for Federalism

My thanks to Hans Bader, Michael Toth, and Jonathan F. Mitchell for their thoughtful responses to my essay concerning state attorneys general (AGs) and contemporary American federalism. Each raises good points about the AGs’ various roles in the era of executive federalism that has rapidly expanded during the Obama years. As all three authors note,…

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The New Eco Tyranny

N.Y. Attorney General Eric Schneiderman speaks at a news conference in Manhattan with other state attorneys general to announce a states-based effort to combat climate change, March 29, 2016. REUTERS/Mike Segar

Last week, the attorneys general of 20 states met at a conference “dedicated to coming up with creative ways to enforce laws being flouted by the fossil fuel industry,” in the words of the conference’s host, New York Attorney General Eric Schneiderman. The environmental website Ecowatch called it “an unprecedented, multi-state effort to investigate and prosecute” oil companies that the AGs say “stymied attempts to combat global warming.”

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