By Richard J. Douglas
An Oct. 17 article in the Maryland Reporter on Attorney General Brian Frosh asks: AG Frosh’s broad legal power: Partisanship or ‘long overdue’? The correct option, though unstated, is: “unconstitutional.”
On June 12, 2017, exceeding his authority under the Maryland Constitution, Mr. Frosh filed a federal suit for relief he must have known to be unconstitutional: an injunction against the President under the U.S. Constitution’s Emoluments Clause. The Frosh suit will be dismissed.
Its legacy, however, will be the loss to Maryland of the FBI Headquarters project and hundreds of jobs.
Mr. Frosh’s federal complaint is silent on Maryland’s Constitution and Code, probably because neither provides authority for his lawsuit. Mr. Frosh acknowledged as much on June 12, 2017 when he told the Daily Record that [an Emoluments suit against the President] “was not on my radar in February.”
For 150 years before its 2017 session, a suit like this was not on the Maryland General Assembly’s “radar” either. The Daily Record reported (June 11, 2017) that “the General Assembly gave [Frosh] the authority to take the [President] to court to protect the state’s residents.”
In truth, the law in question — the “Maryland Defense Act” (MDA 2017) — does not even mention the president. And even assuming the General Assembly could haphazardly upset the federal-state balance created in 1788 when Maryland ratified the federal Constitution, MDA-2017 would still not authorize the Frosh lawsuit.
The text of MDA 2017 is aimed at the “federal government,” a creature that is not identical to the president. The federal government includes the Executive, Legislative, and Judicial branches and many agencies. The President is unitary head of only a third of it.
Maryland Constitution should have been amended
Authority to sue a President in his official capacity cannot be “assumed into” a law (like MDA 2017) with text that plainly does not provide for it. In short, without amending Maryland’s Constitution, the General Assembly exceeded its own state constitutional limits by enacting MDA2017.
In hindsight, a bid to amend our state Constitution would have tested Maryland appetites for upsetting federal-state equilibrium here that not even the Civil War destroyed. Mr. Frosh is after a new federal-state relationship, but he will only draw dire consequences for Maryland. Loss of the FBI project is an example.
Whatever else may be allowed to Mr. Frosh by Maryland’s Constitution, lawsuits for unconstitutional remedies is not. This is the Achilles heel.
Since 1866, the Supreme Court has forbidden injunctive or declaratory relief against a President under the Emoluments Clause. In other words, Mr. Frosh demands what has been forbidden since Reconstruction. Such lawlessness fosters more lawlessness like anti-police sentiment in the General Assembly and disenfranchisement of voters through gerrymandering.
Marylanders are appalled by Mr. Frosh’s neglect of official duties. Of 85 press releases posted to his official web site between Inauguration Day and his anti-Trump lawsuit, 35 attack the President, his nominees, or his policies. During the same period, Mr. Frosh posted one press release on Maryland’s opioid crisis.
2016 election settled the question
The Frosh lawsuit also dealt Maryland electoral integrity a blow rivaling anything Russia is accused of doing. The 2016 General Election settled the question of the presidential succession decisively and constitutionally. The Frosh effort to undo that result is anti-constitutional and harmful to Maryland democracy.
During Mr. Frosh’s quixotic legal attacks on the president, citizen and lawfully-admitted alien workers in Maryland have been swamped by unlawfully-present foreign labor. Mr. Frosh has had no part in creating a business-friendly Maryland to attract jobs. Maryland health care was in distress, and the price for Chesapeake Bay preservation efforts was paid by elderly and poor Baltimore City residents. Foreign criminals found “sanctuary” in Maryland as Mr. Frosh invited lawsuits against police departments and municipalities standing in their way.
After four years, Mr. Frosh has harmed our state and the office of the Attorney General. He has not rationally pursued Maryland’s interests. Murky economic complaints from entities outside Maryland (that, tellingly, did not even join the Frosh lawsuit ) cannot be laid at the door of a President who had been in office just seven months when Mr. Frosh filed suit.
Rather, apart from his personal anti-Trump ideology, the ills Mr. Frosh catalogs in his lawsuit reflect failures to improve conditions in Maryland by former governors and the General Assembly, where Mr. Frosh himself served. Either way, Mr. Frosh has demonstrated that, for our state, a second Frosh term as attorney general is likely to do far more harm than good.
The FBI Headquarters project held genuine promise for Maryland workers and businesses. Mr. Frosh and his anti-Trump ideology helped kill it. Past is prologue, and on Nov. 6, Mr. Frosh should be replaced.
Richard Douglas is an attorney who has run for U.S. Senate and is currently a candidate for delegate in District 21.