Jonathan F. Mitchell

Jonathan F. Mitchell, a visiting professor of law at Stanford Law School, served as the Solicitor General of Texas from 2010 to 2015.

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 federal government and announcing that all non-enumerated powers are left to the states.[1] But “parchment barriers” of this sort are a weak and ineffective means of preserving state authority. Words are always subject to interpretation, even when government officials are acting in good faith. And…

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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,…

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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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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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