Attorney General?s Approval of Agency Rules Provides Sensible Check on Run-Away Bureaucracy

May 6, 2015

(AUGUSTA) Attorney General Janet Mills praised the work of the Office of the Attorney General to ensure that the rules that state agencies write are of the highest quality and legally defensible. In response to the Governor?s call to eliminate the role of the Office of the Attorney General in approving agency rules, Attorney General Mills issued the following statement:

?The Attorney General?s role in giving final approval as to ?form and legality? to an agency?s rulemaking has been in Maine law for more than five decades, through the terms of eight different governors and twelve Attorneys General.?

?Over the past 4 years, the Office of the Attorney General has reviewed and approved app. 1,500 rules originating from app. 50 different state agencies, boards and commissions. In many cases, an Assistant Attorney General has offered improvements and corrections to the rules to make them legally defensible and consonant with legislative intent and constitutional principles?.

?These reviews are done by longstanding nonpartisan professional staff in the Attorney General?s Office who have extensive experience with the Administrative Procedures Act and who do their job without passing judgment on the policies behind the rules.?

?In some cases, these attorneys have pointed out fatal flaws in the rulemaking process, such as failure to notify the public, violations of federal law, lack of statutory authority, and constitutional defects. Addressing these flaws has kept the state from being sued, has maintained the integrity of state government, and important checks and balances in the system and has saved the public purse from substantial losses.?

?Without this critical role of the Attorney General, agency employees could promulgate rules inartfully and without due process or any deference to the legislature?s will. The role of the Attorney General then is quite different from that of an attorney in the private sector. Failure to adhere to the advice of the Attorney General in this context results in the executive branch single-handedly creating policies that have the force of law, but without proper legislative or constitutional authority. The constitutional separation of powers demands this scrutiny of the executive branch?s actions.?

?The current rulemaking process allows for a better final product that is more likely to withstand legal scrutiny. For instance, a few months ago the Department of Health and Human Services wished to promulgate a rule regarding drug testing of felons who apply for TANF benefits. Similar policies had been overturned by federal courts around the country. Rather than tell the Department it could not adopt the rule, the Attorney General?s Office reviewed the case law at length and made recommendations on how to implement the rule so that it might pass constitutional muster. To date that rule has not been challenged thanks in large part to the extensive work of an Assistant Attorney General during rule review.?

?This law is not broken, and it does not need fixing.?

LD 1354 had a public hearing on Monday, May 4 in the State and Local Government Committee. No work session has been scheduled at this time.