Wednesday, April 21, 2010

Get Your Paws Off, T-Paw!

“I have been thinking that I would make a proposition to my Republican friends... that if they will stop telling lies about the Democrats, we will stop telling the truth about them.”

“All progress has resulted from people who took unpopular positions.”
- Adlai E. Stevenson
American Politician, Governor of Illinois 1949-53, U. N. Ambassador 1961-65
1900-1965


There is a quiet, very polite conflict going on in the executive branch of Minnesota state government, over who legally represents the state and who calls the shots about going to court over the recent health care reform legislation; there are parallel conficts in states across the country. After the partisan politicizing of the Department of Justice in the Bush Administration, I think we all need to consider very seriously the intrusion of a chief executive into the activities and authority of the applicable Attorney General, especially for self-serving reasons.

from the official web site of Minnesota Attorney General Lori Swanson (D):
http://www.mn.ag.state.mn.us./Office/Default.asp

"About the Attorney General's Office:The Attorney General is the chief legal officer for the State of Minnesota. ... The Office represents the state in state and federal court, as well as in administrative adjudication and rulemaking hearings. ... In addition, the Office issues formal opinions interpreting statutes for the agencies and political subdivisions of the state. ... The Office is the state’s chief policy maker and law enforcer in the important areas of consumer protection, antitrust enforcement and charities’ regulation. "

The topic was covered by the Christian Science Monitor in an article back in March, just after it became law, in response to the same conflcit happening in many other states as well:
“State attorneys general are constitutionally independent state officers and have autonomy in their decisions to take action on behalf of their states,” according to Steven Schier, a political scientist at Carleton College in Northfield, Minn."

A position which has not stopped Minnesota's Republican Governor Tim Pawlenty, who appears to have strong 2012 presidential ambitions, from grandstanding to the arch-conservative GOP base. "T-Paw" boasted to the media from Fox News to Minnesota Public Radio in early April about joining, on behalf of the state of Minnesota, in the AG litigation in Florida challenging the new Health Care Reform law.

Last September, in an interview on ABC's "This Week" with George Stephanopoulos, Pawlenty sang a different tune. He didn't think health care reform merited a legal challenge.

Stephanopoulos: "So, just to be clear, are you suggesting that any parts of the plan as the president has laid it out are unconstitutional?"
Pawlenty: "Well, I wouldn't go so far as to say it's a legal issue."

A change in position Newsweek's Alan Romano mocked when he wrote, "Pawlenty Flip-Flops on Health Care", asking "Is T-Paw the new John Kerry?" in his April 6, 2010 column, The Gaggle.

Why the change? Presidential ambitions.

Or, maybe instead of the suit he has boasted about, as T-Paw asserts much more quietly, he will just file an amicus curiae ("friend of the court") brief on behalf of Minnesota, an opinion / advisory document opposing the legislation.

T-Paw was at one time a practicing attorney and is in his second term as governor. So he should be aware that he is NOT the legal representative for the state of Minnesota in federal court or any other court. We Minnesotans ELECT the Attorney General to do that job, and to exercise that authority.

Given how long it has been since he has practiced law, I'd expect T-Paw to be seeking expert legal ghost writing instead of relying on his own legal qualifications to draft an amicus brief. If so, I don't imagine that service will come cheaply. As a resident of Minnesota, which has seen serious deficits in our state finances resulting is harsh cuts to important budget spending, I particularly would be irked if Governor 'T-Paw' uses any of our state money to get good legal help for his self-serving brief, given recent state budget cuts.

AG Swanson, in a savvy display of what we like to call "Minnesota nice", (which is not always quite as sweet as it seems on the surface), refused to file suit opposing the new law or to join the Republican AGs doing so. But she did write a formal letter to Governor T-Paw giving her official blessing for him to go ahead with his amicus brief.

AG Swanson's letter is available in its entirety here:
http://.minnesota.publicradio.org/features/2010/04/documents/swansonletter.pdf

It's much less impressive to merely offer a formerly practicing attorney's legal opinion to the court, one of many - which the court can ignore. I think Swanson may have politely cooperated with the Governor, giving him enough scope to embarrass himself, and just enough rope to hang himself, leaving him twisting in the wind if he fails. Given the number of states joining the litigation in Florida, T-Paw may be bringing too little too late to the party to impress the GOP hard core with his presidential potential.

Swanson has also indicated to the Governor she will be offering the court her own amicus brief, which she has a more legitimate right to do than Pawlenty on behalf of the state of Minnesota.

Swanson, however, will be supporting the health care reform law, and opposing Governor T-Paw. Personally, I think she will make him look ridiculous; she is arguably a better lawyer than he is. Her legal opinion is based on the law, not on ambition to be a candidate for the White House in 2012.

The judge could still reject Swanson's amicus brief, and T-Paw's. In a mid-April ruling against birther queen Orly Taitz when she tried to join the AG litigation against the health care reform law, senior federal judge for the United States District Court for the Northern District of Florida, Roger Vinson, denied Taitz intervener motion stating "the representation by the Attorneys General must be deemed adequate".

Judge Vinson concluded his decision with the statement "The Parties to this litigation, and, indeed, the citizens of this country, have an interest in having this case resolved as soon as practically possible. That task will be made exponentially more difficult if all those who have an opinion or an interest in the outcome of the case were allowed to intervene and to join in those proceedings." In another part of the Taitz decision, Judge Vinson indicated numerous individuals had sought to join in; from his concluding statement, I get the impression the judge would like everyone not directly involved kindly to 'butt out' so he can get on with it. Too bad about Taitz losing out in joining the litigation in one respect; she always provides comic relief to any proceeding in which she is involved.

Numerous other state Attorneys General and their Governors are in conflict over filing litigation of their own, or joining the existing litigation filed by a number of Republican state Attorneys General (with one exception). AG James "Buddy" Caldwell (D) , from the state of Louisiana, is the only Democrat in litigation which is highly partisan, a filing otherwise exclusively along party lines. In the case of the Louisiana AG, the Governor, a Republican, is reported to have threatened to cut the funding for at least half the staff of the AG if he did not join in the litigation on behalf of Louisiana - essentially, gaining state participation by means of a threat which suggests an abuse of power.

In Nevada, Governor Jim Gibbons (R), yet another Republican politician embattled in a sex scandal, pressured Nevada AG Cortez Masto to challenge the recent health care reform in federal court. AG Masto was resisting the pressure, on the basis that there is no legal justification for joining the litigation, a position taken by the majority of states AGs.

In Michigan, the opposite situation is unfolding, with Governor Granholm ordering AG Cox to intervene on behalf of the health care reform legislation, while AG Cox has come out on the side of the litigation opposing the health care reform legislation. In Wisconsin, Republican AG Van Hollen requested permission to join in the litigation challenging the health care reform law. Van Hollen had also requested permission from the Wisconsin state legislature, which is not likely to be given. In Montana, it is the state legislature that is pushing for the AG to pursue litigation over health care reform, and the AG is refusing. In Washington, Governor Chris Gregoire (D) is fighting the Washington AG, Rob McKenna (R) for joining the suit.

In Georgia, AG Thurbert Baker (D) refused to pursue litigation, so instead Governor Sonny Purdue (R) used his state constitutionally provided authority to appoint a special AG to pursue litigation on behalf of the state of Georgia, and named Frank C. Jones to take on the job.

In Oregon, Governor Kulongoski is on the same page with AG Kroger - both are Democrats. Oregon is supporting the legislation in the litigation, filed in Florida. So far as I have been able to determine, this is the only state where both the AG and the Governor are not only in agreement, but willing to expend state funds to defend the health care reform bill in court.

As of this writing, the states with Attorneys General participating in the litigation to overturn the Health Care Reform law are:Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Pennsylvania, South Carolina, South Dakota, Texas, Utah, and Washington. Virginia, again acting on partisan lines, is filing separate litigation from the group action.

Florida AG Bill McCollum (R) has spearheaded the litigation filing in Florida, and is also running for governor in that state. Recent polls in Florida show McCollum losing ground against his democratic opponent, where a recent Quinnipiac poll indicated 54% of Florida voters oppose the suit, while only 40% are in favor of it.

The named Defendants in the suit are the U.S. Dept of Health and Human Services, & Sec. Kathleen Sebelius; U.S. Dept. of the Treasury, & Sec. Tim Geithner; and the U.S. Dept. of Labor & Sec. Hilda Solis.

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