In the latest round of Gov. Paul LePage’s battle with Attorney General Janet Mills, the governor has asked the Maine Supreme Judicial Court to decide whether he must continue to get Mills’ permission to hire outside lawyers when she refuses to represent his point of view.
In a Jan. 23 letter to Chief Justice Leigh Saufley, the governor laments — at length — that the attorney general essentially stands in the way of his policy priorities.
“A requirement to request permission from the Attorney General implies that permission may be denied, which would leave the Executive Branch without legal representation and would deprive me, and the Executive Branch officers working at my direction, of the inherent and constitutional authority to carry out the policy priorities I set,” the governor wrote in the letter, which asks the state’s highest court for guidance.
But there’s a basic problem behind LePage’s request for the court’s opinion. If the governor’s policy priorities run counter to state or federal law, or either constitution, they shouldn’t be carried out. If they are, the state risks time-consuming and costly litigation, which could have been avoided by simply ensuring the policies were legal and constitutional, which is what the attorney general’s office does.
Second, the governor appears to have a fundamental misunderstanding of the role of the attorney general, who is chosen by the Legislature. Mills works for and represents the state of Maine, not the governor’s office. When those two are in opposition, her duty is to represent the state’s interests. On two recent occasions, that responsibility has been at odds with LePage’s policy priorities.
In each instance, she told the governor’s office that the law was not on its side and that she would not pursue litigation that was not legally sound. This is her job. But in both instances, as the law requires, she reviewed and approved the governor’s request to hire outside legal counsel to pursue the legal battles.
In one case, the Department of Health and Human Services sought to end Medicaid coverage for 19- and 20-year-olds. The federal Department of Health and Human Services said this would violate maintenance of effort provisions in the Affordable Care Act and in 2013 rejected cuts the state sought through normal administrative channels. The state asked for reconsideration and the federal DHHS denied it. The state then took the matter to the 1st Circuit Court of Appeals, where a three-judge panel unanimously ruled against it in November.
According to the Associated Press, the state has paid $53,000 to outside legal counsel so far in the case. LePage plans to appeal the case to the U.S. Supreme Court, and the attorney general has allowed outside legal counsel to prepare a petition asking the court to hear the case. If the petition is granted — the odds of this happening are slim — the governor would again have to ask permission to continue working with outside legal counsel.
The other case involves a lawsuit filed by the Maine Municipal Association, Portland and Westbrook against DHHS over reimbursements for General Assistance funds. The cities and MMA argue that LePage did not follow the legally required procedure for amending General Assistance eligibility rules to exclude some immigrants, including asylum seekers. LePage instituted the rule change unilaterally — despite Mills’ guidance that the rule change violated the U.S. and Maine constitutions.
Maine is unique in having an attorney general who is elected by the Legislature; in 43 states the AG is chosen by popular election. LePage has suggested that he appoint the attorney general, although more recently he’s said he favors a popular election.
This most recent incident adds to the evidence that the attorney general must remain independent, bucking the governor when necessary to uphold state and federal laws.