NICK GOSNELL
Hutch Post
HUTCHINSON, Kan. — As Kansas Attorney General Derek Schmidt prepares to hand over the office to fellow Republican Kris Kobach, he notes that the amount of suing of the federal executive branch that happens now is more than he anticipated when he took the job 12 years ago.
"We've really been part of the pioneering generation of state attorneys general, both Republicans and Democrats, who have pushed back against federal actions that we think are not just bad policy, that's not our role, but are illegal. That is our role, to police the boundaries of the federal system. It's become increasingly necessary, because Congress has become increasingly dysfunctional, so their oversight function, that tended to work reasonably well in the 1980s and 1990s, maybe even the early 2000s, it just rarely functions at all now, and because of that, federal agencies have been allowed to operate, really, in an unchecked manner."
One of the issues Kobach will face as he comes in next month is whether or not there is any legal recourse for the federal designation of the lesser prairie chicken as threatened.
"The last time the federal government tried this, we brought suit and prevailed when the Obama Administration tried the same thing, and we blocked the effort then to list. We had started to engage on this one when there was emerging, what looked like one of these sue and settle lawsuits, where activist groups bring a suit against a sympathetic federal bureaucracy and then both of them agree to settle the suit before anybody else can get in it. We were prepared to jump in that."
Sue and settle is a strategy sometimes used by the government and interest groups that agree with it to speed along actions it already wants to do, because doing things at a court's behest does not require the notice and comment that is supposed to happen under the Administrative Procedure Act of 1946.
The Act includes requirements for publishing notices of proposed and final rulemaking in the Federal Register, and provides opportunities for the public to comment on notices of proposed rulemaking.
The Title 42 controversy that is currently playing out at the U.S. Supreme Court is not necessarily as much about the border for that court as it is about not allowing sue and settle strategy to continue to promulgate across the federal government.
If a precedent can be set that tamps down sue and settle as a strategy, it could limit the power of future AG's to challenge in the way they do now, but it also could provide the public the opportunity to properly lobby its lawmakers and work the process through Congress rather than rulemaking in the first place.