In Maryland, unlike in some other states, the attorney general has historically required the governor’s or legislature’s express permission to undertake legal action against the federal government. In late February, that changed with the passage of the Maryland Defense Act of 2017, which would limit the ability of Maryland’s governor – Larry Hogan, a Republican – to stop lawsuits against the federal government brought by Maryland’s attorney general – Brian Frosh, a Democrat.
The un-named adversary against whom the Act is meant to “defen[d],” is, of course, President Trump. Specifically, the Act envisions “arbitrary, unlawful, or unconstitutional federal action or inaction” in coming years that “may pose a threat to the health and welfare” of the residents of Maryland. The Act instructs the AG to “investigate, commence and prosecute” any necessary legal action to prevent such threats from becoming realized.
The Act does require the AG to allow the governor to review intended suits or actions against the federal government (unless the AG determines that an emergency exists and requires immediate action), but the Governor’s power over such intended suits is limited to “reviewing and commenting,” and, if he so chooses, “objecting.” If the latter, the governor must “provide in writing to the AG the reasons for the objection,” though the Act makes no suggestion that the AG must change course on the basis of such objections.
AG Frosh wasted no time flexing his new powers, announcing only one week after the Act’s passage that Maryland would join other Democratic AGs in opposing President Trump’s revised executive order restricting entry from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. Five days after that, AG Frosh joined a coalition of Democratic AGs threatening legal action against the Trump administration’s announced action to revisit vehicle emissions standards.