Analysis: How states can step in when President Trump doesn’t enforce laws
authorize state attorneys general to serve as plaintiffs. States’ authority to enforce federal law is not unlimited. For example, Dodd-Frank does not allow a state regulator to bring certain actions against national banks. But state lawsuits could pick up much of the slack from somnolent federal agencies.
It turns out the barriers are more practical than legal. State attorneys general traditionally have had smaller budgets and have paid employees less than their federal counterpart. Asrecognized, state AGs need more resources and better protections for independent decision-making to do the work of federal agencies.
Of course, states are often reluctant to increase spending and raise taxes to pay for it. But there are options here as well. For example, if a state wants to increase enforcement without increasing public funding for state agencies, it can followand authorize private citizens to file lawsuits on behalf of the state through a “private attorney general” statute. These statutes build on an ancient procedure known as “qui tam” that allows private citizens to sue in the name of the king.
The one-two punch of bureaucratic sabotage and forced arbitration has weakened the enforcement of critical federal laws. With the federal government unwilling to enforce the law and private parties unable to do so, it is time for states to step up. Zachary D. Clopton is a law professor at Cornell Law School. David L. Noll is a law professor at Rutgers Law School.
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