The Wisconsin Supreme Court unanimously ruled Tuesday from the Democratic Attorney General that changing certain powers to Republican-controlled Congress is unconstitutional. The case is the pinnacle of a six-year dispute over the law that the state attorney general empowered the Legislative Committee to approve or disapprove any civil settlements reached.
As state legislators become more polarized and partisan gerrymanders reduce the representation of state legislative bodies, it is becoming increasingly common for legislative officials to appoint other elected officials. In particular, the Attorney General is targeted in several states that politically oppose Congress, undermining the will of voters who elected them. (43 state attorney generals are elected through statewide elections.) When the legislative majority and the state attorney general represent the same party, Congress, in contrast, gave the state attorney general additional powers at the expense of officials representing different parties, such as the governor and local prosecutors.
Congress reduces politically opposed state attorney general’s powers
The Wisconsin incident relates to the 2018 Lambduck Power Play. After Democrats acquired statewide offices, including the governor and attorney general, Republican Congress and the resigning Republican governor passed legislation to reduce power in the upcoming enforcement division. The law severely restricted the discretion of new Attorney General Josh Cowl by requiring that it be approved by a Republican-led legislative committee before it can resolve civil cases on behalf of the state.
The Wisconsin Supreme Court refused to break the entire law in 2020, but has recently come to light Kaulv. WisconsinState Congress We found that certain applications for the law violated the Wisconsin constitution’s separation of powers. The law cannot enforce state laws or require legislative approval for a civil action settlement to protect the interests of a state department.
Last year, the North Carolina legislature similarly stripped its power from the attorney general, who belong to a political party that is different from the legislative majority. North Carolina Democrats acquired a statewide executive office in November 2024, with Republicans losing the legislative majority refusing to veto, urging Congress to quickly enact Senate Bill 382 before new officials take office. The bill removes the widespread statutory authority of the Attorney General to raise cases on “all issues affecting the public interest.” The former Attorney General has summoned the provisions in a wide range of cases, from the challenges to the first Trump administration’s EPA rules, utility rate setting and litigation related to the opioid epidemic. The bill also prevents the Attorney General from taking lawsuits that violate Congress’ lawsuits.
In March, the North Carolina Senate advanced another bill aimed at limiting the power of the Attorney General, this time by preventing the president from challenging the president’s executive order. The bill could be lacking in votes to hand over veto.
Congress is building up the power of a politically aligned state attorney general.
Meanwhile, recent laws in Kansas, Kentucky, Maryland, Missouri and Tennessee show that legislatures, politically and politically allied with the state’s attorney general, can increase the powers of the attorney general.
In April, Republican Congress in Kansas overturned the Democratic governor’s veto with a bill that expanded the Republican Attorney General’s Office’s powers to investigate fraud in the national welfare and assistance program. Lawmakers who opposed the bill were called unnecessary “power acquisitions” by the Attorney General. This is given that the department responsible for supporting, led by the governor’s appointee, already has its own fraud investigation forces.
In response to an emergency Covid-19 order implemented by the Democratic governor of Kentucky, Republican-controlled Congress in 2021 passed a series of laws requiring approval from the Republican state attorney general before suspending the law in an emergency. The Kentucky Supreme Court upheld the law.
Congress may increase the power of the Attorney General to drive away the powers of local officials. For example, the Republican-led Tennessee Legislature passed a law in 2023 requiring the attorney general to replace local district attorneys to prevent death penalty sentences in collateral reviews. The current Republican Attorney General is a more active supporter of the death penalty than local prosecutors, so the law was upheld by the Tennessee Supreme Court, appointing the Attorney General – could lead to more executions.
In 2023, the Democrat Maryland Legislature shifted authority from local prosecutors by prosecuting a fatal police-involved encounter, rather than referring to a local state lawyer. Many elected prosecutors opposed the law.
The state legislature could also strengthen the attorney general’s litigation rights. In April, Missouri’s Republican Congress and governor enacted a law that allowed the Republican Attorney General to appeal an interim state court injunction whenever the Republican Attorney General ordered a state official not to order the implementation or enforcement of state law. The law emerged as a response to two provisional injunction blocking regulations restricting access to abortion.
The Attorney General immediately used his new power to appeal those injunctions, urging the challenge to the constitutionality of the new law. The Missouri Supreme Court has broken down an injunction that effectively halts all abortions in the state, but did so in response to a previous Mandamas warrant rather than one of the Attorney General’s appeals under the new law.
Legal restrictions on changes to the Attorney General’s authority
State legislatures seeking to expand or limit the statutory powers of a state attorney general must do so within the state’s constitution. As seen in Wisconsin cases, the constitutional separation of power can protect the authority of the Attorney General. Constitutions in some states, such as those in California and Louisiana, also list certain duties and powers for the Attorney General. Congress cannot exclude these constitutional powers through ordinary law. Such changes require constitutional amendments.
Other states, such as Arizona, Kentucky, North Carolina, Virginia and Wisconsin, lack the constitutionally enumerated duty of the Attorney General. As a result, these state constitutions generally place the state attorney general as state attorney general as state attorney general as state chief justice officer, but the powers and duties of the state attorney general come from laws passed by the state legislature. As mentioned above, leaving the powers of the state attorney general to the state legislature creates opportunities for gamemanship.
Even if the state’s constitution does not include the language “as defined by law,” some state courts have determined that Congress can change the scope of the Attorney General’s authority, as seen in Kansas and Missouri.
However, the constitution and statutory language are not the only source of the Judicial Directorate. Many state attorney generals retain their authority under judicially recognized common law. In Illinois, legislatures cannot limit the attorney general’s common law powers. However, most states that recognize the attorney general’s common law powers also recognize the ability to limit these powers of legislative legislative legislatives.
Other attorney generals cannot rely on customary law if statutory authorities are cut. In Wisconsin, the state Supreme Court interpreted the language “as defined by law” of the state constitution to mean that the Attorney General can act only in accordance with the statutory authority.
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Recent experience suggests that state legislatures can and can manipulate the powers of state attorney generals. The decline in the powers of the Attorney General has increased the powers of those Congress opposed and supported by them.
Dylan Erickson is a student at NYU Law School. He previously attended the Brennan Centre Public Policy Advocacy Clinic.
Suggested Quote: Dylan Erixon, The Attorney General is a frequent goal of legislative gamemanshipsᴛᴛᴇcᴏᴜʀᴛrᴇᴘᴏʀᴛ (June 18, 2025), https://statecourtreport.org/our-work/analysisis-opinion/attorney-general-duties-he-frequent-legislative game
