Although state attorneys general frequently rise to become governors or senators and one even went on to be President (Bill Clinton, Arkansas attorney general from 1976 to 1978), they are relatively unknown nationwide while serving as the top law enforcement officials (and lawyers) of their states.
But the issues that they litigate and enforce often become high drama on the national stage. This seems to be happening more than ever these days, with attorneys general of 20 states launching the suit challenging the constitutionality of the Democratic-enacted health care “reform” package. In addition, when states such as Arizona take the initative in dealing with the problem of illegal immigration, they often wind up in court.
During a recent interview with HUMAN EVENTS, Utah’s Attorney General Mark Shurtleff discussed the controversies surrounding his state’s response to both issues. Conservative Republican and former Salt Lake County commissioner, Shurtleff also offered a frank assessment of the highly charged political scene in the Beehive State, with five-term Sen. Orrin Hatch likely to face a formidable renomination challenge fueled by Tea Party Republicans.
Legal Eagles Strike At ObamaCare
Shurtleff traces the genesis of the lawsuits from state attorneys general against ObamaCare to the “Cornhusker Kickback” in the fall of ‘09—the exemption in the health care package for Nebraska alone that was designed to win the vote of Sen. Ben Nelson (D.-Neb.) when the Senate voted for ObamaCare in December of that year.
“A group of us started meeting in the fall of 2009 when we saw the Cornhusker Kickback—whatever they call it,” Shurtleff said. “So we got together and said, 'Look. What you’re doing, you’ve got to do right. You’ve got to do it legal.' ”
From there, he recalled, an informal working group of Republican attorneys general was formed and the officials kept monitoring the progress of the legislation. Their lawsuit was filed within minutes of President Obama signing it into law in 2010.
Earlier this year, Judge Roger Vinson, a Reagan appointee, issued a far-reaching decision saying that the mandates requiring citizens to purchase health insurance in ObamaCare were in fact unconstitutional.
"Judge Vinson had a history of recognizing states' rights and the 10th Amendment and so forth, and we had a 50/50 chance of getting him and we did,” the Utahan told us. “[His ruling] is an amazing document on the history of the separation of federal and state [authority], the 10th Amendment, and commerce clause.”
At this point, the fate of ObamaCare is in the hands of the U.S. Court of Appeals. As to why it was not appealed directly to the Supreme Court, Shurtleff said without hesitation: “They won’t do it. The White House won’t, President Obama won’t agree to it.”
“We wrote a letter for 28 governors to sign, and they signed it. It said we have until 2014 [to implement ObamaCare], but we’re spending money right now. … Please instruct your Department of Justice to agree to a Rule 12 [permitting an appeal], to go straight to the Supreme Court. [The Obama Administration] wouldn’t do it.”
Shurtleff added that he and his fellow attorneys general are talking about this, but no one is writing about it. There is clearly, he said, “gamesmanship going on right now.” But even though states are being forced to implement ObamaCare before it's constutionality is decided, “I think we’re going to win. I’m predicting 5-4 [in the Supreme Court], with [Justice Anthony] Kennedy going our way.”
Utah on Illegal Immigration
In March of this year, Utah’s legislature passed and Republican Gov. Gary Herbert signed the Utah Immigration Law, which will permit illegal immigrants to have work permits to undertake employment in the state. Critics dismiss it as “amnesty” and wonder why Utah didn’t follow the example of its sister state in Arizona, which passed a tough anti-illegal immigration measure.
“First of all, we’re not Arizona, we aren’t a border state, we can’t deport anybody from Utah, we don’t have the federal holding facilities,” Shurtleff explained. “It was really going to be catch-and-release in Utah. It wasn’t popular with law enforcement. Our police don’t want to be ICE [Immigration and Customs Enforcement] agents. We’re very busy doing our jobs, thank you very much.” He also cited one of Utah’s most conservative state senators, Bill Wright, “who is a dairy farmer, and feels, ‘I cannot fill my jobs. I tried. I’ve advertised. I would hire Americans. I need these people.”
Of the law that was enacted, Shurtleff says: “If you were here here before May, then you are in line to get one of these permits. If you come after that, then you are not.” Citing his own concern about the issue as well as the state’s need for migrant workers, he recalled, “I drafted House Bill 466 . . . it passed in 24 hours. Everybody came in and supported this, including the Tea Partiers, the 9/12ers, and the Eagle Forum.
“And what this does is to create the Utah Commission on Immigration and Migration that’s going to be legislatively based and have appointees from the community. Their responsibilities are to examine all Utah and federal laws and see what people are doing, and try to come together to make further recommendations down the road. But the key component of this is the migrant worker visa program for the state of Utah and the state of Nueva Leon [Mexico].”
The identification card that Nueva Leon would issue to migrant workers, he explained, “has an expiration date with a fingerprint. They say we’re going to call you 90 days, 60 days before that expires, and tell you that you need to be back in Mexico. If not, then we will turn you into [U.S. immigration authoritites]. We have that connection. By the way, they have more than a 98% return rate on their guest worker visas. So people go back.”
Hatch on the Ropes
Last year, Utah Republicans made headlines nationwide by dumping three-term Sen. Robert Bennett at their state convention and nominating Tea Party favorite and conservative stalwart Mike Lee, a lawyer and first-time candidate (who went on to win the Senate seat with ease in November).
Although he has yet to announce any plans, Tea Party favorite and two-term Rep. Jason Chaffetz is considering a challenge to the state’s other Republican senator, Orrin Hatch.
Is Hatch in danger in 2012? Shurtleff thinks so, pointing out that party rules require a candidate to get 40% to qualify for a primary.
“Sen. Bennett got 15%,” he said. “Sen. Hatch will get more than that. He’s not Bob Bennett. But to get to 40% will be difficult.
"It depends on whether there is a huge turnout at our precinct caucus meetings of Tea Party folks. And the question is whether next March [when the caucuses are held], are they still riled up to go to their party caucus.
“On the other hand, Orrin Hatch is doing what we are all trying to do—to get his people to go to these meetings. I was there at our precinct meeting [in 2010] and traveled to several, and asked, 'Do you want to be a delegate from our precinct?’ When someone would say he was supporting Bob Bennett, [the Tea Party activists would respond], ‘No, we’re not electing you. Throw the bums out.’ Sen. Hatch is facing that.
