Idaho’s new AG tends to takes a more ‘aggressive’ approach to federal lawsuits

As Idaho’s top legal officer, Attorney General Raúl Labrador is tasked with defending the state and its agencies, but the role can be expanded to exert nationwide influence.

In Labrador’s first six months in office, he participated in more than 100 multi-state lawsuits; he led seven of those legal efforts, according to a public records request. Since the request was filed, his office joined at least one more that pushed against an Environmental Protection Agency proposed rule on emissions.

This is a significant departure from how the office ran for 20 years under Idaho’s previous attorney general, Lawrence Wasden.

To those paying attention though, the change isn’t exactly surprising. On the campaign trail, Labrador criticized the previous administration for not joining more federal lawsuits, and he said at a debate in April 2022 that he would be “more aggressive,” the Idaho Press previously reported.

“I think the greatest battles for the soul of our nation and the soul of our state are happening in the federal courts,” Labrador said at the time.

From 2003 through 2022, Wasden participated in 33 amici efforts, according to a records request. An amicus brief is designed to assist the court by providing further information or advice regarding questions of law or fact.

During the April debate, Wasden responded to criticism by saying, “I sued the federal government over vaccine mandates. I’ve sued the federal government repeatedly. ... You have to try and make sure that you have a legitimate cause of action, and that’s what we do.”

Wasden did not respond to a request for comment by press time.

The answer to how involved state attorneys general should be in out-of-state or multi-state issues differs depending on the person who holds office.

Former Attorney General David Leroy, who endorsed Labrador in the election, said it’s an increasingly important role of the office. Leroy served from 1979 to 1983 and later served as lieutenant governor.

“In the ‘70s and ‘80s, we had far less litigation on federal issues,” he said, “not because the attorneys general were less active or communicative, but because the federal government was relatively smaller and less involved in every aspect of people’s lives then than it has become now.”

He supported Labrador’s legal actions on these nationwide issues.

“It’s certainly true that Raúl promised to be an activist attorney general on these kinds of issues, but that activism, in my opinion, is far more than a campaign promise,” Leroy said. “It’s a necessary duty of whomever is attorney general of Idaho, without regard to political party.”

Other states’ attorneys general’s offices regularly communicate about regional or national issues and sometimes solicit participation from other offices, he said. When considering whether or not to join, Leroy would consider if the issue substantially affected Idahoans or if the Gem State would have a unique point of view that should be addressed and would add to the argument.

He said he would also look at issues that could create a useful legal precedent and had a reasonable likelihood of success.

Another former Idaho attorney general, Jim Jones, agrees that there seem to be more federal lawsuits today. Jones, who supported Labrador’s opponent Tom Arkoosh in the election, served from 1983 to 1991 as later as a justice on the state Supreme Court.

He said he tried to join them “sparingly” and criticized Labrador’s use of the tool. He also argued that in many cases, signing onto other states’ briefs doesn’t necessarily make much of a difference in the outcome.

“They don’t sit around counting how many states are signed onto a particular brief,” Jones said.

Typically, signing onto an amicus brief doesn’t take much time or work from the office, both Jones and Leroy said, unless the office is doing something unique or leading the lawsuit. However, if leading a cause, having other states sign on can reduce the cost by getting briefings and ideas from other attorneys general.

“It’s just a Kabuki dance,” Jones said of the briefs Labrador has signed onto. “It’s a means of getting publicity for doing hardly anything.”

An emailed statement from Labrador’s office said that Labrador’s work has included amicus briefs, complaints, and oversight letters “challenging Biden Administration policies, proposed regulations, or agency actions.”

“Unlike the previous Attorney General, Attorney General Labrador has also taken the lead on several multistate efforts, including four amicus briefs that have garnered the support from as many as 24 fellow attorneys general,” the statement said. “Republican Attorneys General around the country have been vocal about the change in posture and aggressiveness from the Idaho Attorney General’s Office and have welcomed our leadership and our collaboration in the fight against federal overreach.”

These lawsuits have covered a broad spectrum of issues.

On July 5, the office announced that Labrador joined a group of 16 states, led by Kansas, to challenge a proposed U.S. Department of Health and Human Services rule that would allow some illegal immigrants to access health care under the Affordable Care Act.

On June 2, the office led 23 other states in challenging California’s Unsafe Handgun Act, arguing it violated the Second Amendment.

In early May, he joined 20 other states to defend a Colorado cake maker’s ability to refuse to make a custom wedding cake for a same-sex couple, arguing it was a violation of his First Amendment rights.

Other lawsuits have centered around immigration, robocalls, abortion, transgender athletes, religious rights, water regulations, and more.

Leroy said that joining cases such as these are in Idaho’s interest, even when they involve laws in other states or jurisdictions outside the Northwest.

“It’s adding Idaho’s sovereign voice to the process of seeking an important ruling that affects national and Idaho rights,” he said.

He said that while courts don’t make their opinions based on how many states sign onto an issue that, “There is some utility to showing unanimity of opinion by a large number of states if something is to be presented and considered at the highest levels of our judicial system.”

Leroy said national litigation he would usually join often involved public lands, water rights and taxation, he said, because these were all of substantial interest to Idaho.

For Jones, he said he focused on many consumer-related issues and the sale of dangerous medications.

Jones characterized many of the cases Labrador has worked on as “culture wars” and “a waste of time.”

“Unless you can contribute something, it’s best to just keep your powder dry and do the work the people hired you to do,” he said.

Information on many of the lawsuits can be found on the attorney general’s website: ag.idaho.gov/newsroom.

Guido covers Idaho politics for the Lewiston Tribune, Moscow-Pullman Daily News and Idaho Press of Nampa. She may be contacted at lguido@idahopress.com and can be found on Twitter @EyeOnBoiseGuido.