Previously having faced setbacks in terms of House of Representatives leadership and committee assignments with his inability to place favored allies in positions of power, Democrat Edwards also suffers from another clipping of his authority: the assertive posture adopted by new Republican Atty. Gen. Jeff Landry. It began innocently enough with Edwards proclaiming that he would ratchet down the practice of recent governors in using outside counsel through the Governor’s Office and other executive branch agencies to pursue certain legal matters, leaving Landry more unopposed discretion in dealing with these.
Landry has espoused a novel implementation of the constitutional powers of the attorney general. Historically, when other parts of the executive branch, through their defined statutory powers, engaged in legal action, the attorney general stayed out of the way. These past heads of the state Department of Justice also shied away from using their constitutional authority to initiate or intervene in civil matters outside of largely legal questions like suing drug manufacturers for misrepresentation involving state contracts.
But Landry has signaled that he would take greater advantage of the power “to institute, prosecute, or intervene in any civil action or proceeding” and “to supersede any attorney representing the state in any civil or criminal action.” He apparently will keep going state actions against Planned Parenthood for alleged contractual violations and to ward off an injunction against new regulations, not opposed by Edwards.
However, when Landry announced, after Edwards said his office would cease litigation against the federal government related to the Common Core State Standards Initiative, that he would review the matter and decide whether to continue it, Edwards wrote him a note that stated “in any case, the client, not the attorney, should ultimately make the decisions on the course of action, and I have decided this case will not proceed …. my administration can and will defend itself in court whenever I deem appropriate,” and elaborated that the Governor’s Office would not pursue that case out of a desire not to “waste any state resources on cases brought for political purposes” or on “meritless cases meant to advance a political agenda.”
Yet the problem for Edwards here is that Landry does have the constitutional authority to assume the case, as he reminded the governor in a reply. Further, he can do little to stop that because the one area that a governor, with Legislative cooperation, can use as leverage against a recalcitrant elected executive is in budgeting, where the Department of Justice has relatively little exposure. Only about a sixth of its revenues come from the general fund, the remainder from interagency payments for services rendered to parts of state government, statutory dedications that only repeal could eliminate, federal grants, and self-generated funds.
And that assumes a Republican-dominated Legislature would go along with that desire. Even Edwards’ line-item veto authority at best would provide a clumsy weapon, for concerning the budget it either would gut large portions of sections of Justice that had nothing to do with this kind of litigation or it would end up throwing out the baby with the bathwater, with Landry in position to win easily a public relations battle by showing how cuts would stop activities expected by the public such as assisting in regulation and on criminal trials.
Of course, Republicans well may want to see Landry succeed in acting independently from Edwards. Electorally, from the minute he took the oath of office Edwards became an electorally dead man walking who can resuscitate himself only by achieving centrist policy successes. If Landry can find and publicize several issues that highlight ideological differences between himself, where the electorate’s majority agrees with him on most issues, and Edwards, where only a minority of the electorate agrees with him on most issues, this obscures any such policy successes Edwards can engineer. In doing so, Landry positions himself as a strong candidate to defeat a reelection attempt by Edwards in 2019, or, at the very least, weakens Edwards for picking off by any Republican.
Past governors never had such a conflict either because of shared partisanship and ideology with an attorney general and/or a Legislature that could back them up, so if an attorney general ever thought to act independently of the governor, they deferred knowing they could not get away with it without some serious payback. Landry’s open challenging of Edwards can happen only because of Edwards’ isolation in government and his initial obstinacy in accepting that he cannot act as dictatorially as past chief executives, given that position. It’s another sign of Edwards’ weakness for which he must find a way to compensate if he will make anything more than a shallow imprint on public policy over the next four years, much less serve another four after that.