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Law360 (March 26, 2020, 3:38 PM EDT) --
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| Shum Preston |
It is far too early to see just how much the coronavirus will change the policy and political focus of state attorneys general, but the early responses show at least three major impacts: consumer protection actions are being rapidly remade; attorneys general are now grappling with what can only be described as experimental law; and, for the moment at least, the Affordable Care Act and internet monopolies seem much more likely to survive than they did before the crisis.
Let's break those three down, but first we have to recognize how unforgettable and unprecedented this week has been for state attorneys general, and how it has changed the way that they and their staff can work
For example, Georgia Attorney General Chris Carr is self-quarantining because of the possibility that he may have been exposed to the coronavirus (hopefully he is OK). He is certainly not the only state Department of Justice official around the country doing that, and the number will only grow.
Michigan Attorney General Dana Nessel, to take another example, is dealing with staff working from home, just as consumer calls to the state spike. She has tapped legislative staffers, state legislators and even Rep. Elissa Slotkin, D-Mich., to help answer the lines. Attorneys general and their staff are thrust into a new spotlight just as they are at the same managing real-life issues like this.
The situation is unprecedented, but it has not stopped attorneys general from changing the focus of their consumer protection work to largely focus on coronavirus issues. Consumer protection has always been the bread and butter of state attorneys general, and in the past that has meant everything from cracking down on scams involving home repair after an emergency, to scams involving mortgages, to taking unsafe products off the shelf. Consumer protection work is the safe space for attorneys general.
In the space of this unprecedented week, however, all the consumer work of attorneys general has been upended as they turn urgently to focus on protecting consumers from scams involving the coronavirus. Televangelist Jim Bakker was one of the first targets of the attorneys general, for selling a silver-based liquid as a supposed cure for the coronavirus (at $80 for 16 ounces).
New York Attorney General Letitia James served him a cease-and-desist letter, and Missouri Attorney General Eric Schmitt followed up by filing for a restraining order to end the scheme. Conspiracy theorist and conservative radio host Alex Jones was also served with a cease-and-desist letter from James to stop his sale of fake coronavirus cures, and many similar actions will follow.
However, attorneys general have focused even more on going after price-gouging of medical and personal supplies during this national emergency. Kentucky Attorney General Daniel Cameron and Tennessee Attorney General Herbert Slatery worked together to crack down on a high-profile example involving hand sanitizer, first reported in The New York Times, after a man hoarded 17,000 bottles of it and tried to sell them at inflated prices.
Those attorneys general are hardly alone. North Carolina Attorney General Josh Stein is one of many who is receiving so many complaints about price-gouging that he is regularly updating the total number of complaints that his office is pursuing, while Florida Attorney General Ashley Moody has released an app to intake price-gouging complaints and streamline her tracking of them. In Pennsylvania, Attorney General Josh Shapiro is partnering with a local U.S. attorney, in what will probably be the first of many state-federal partnerships on this issue.
Of course, all this focus on consumer work will come at a cost, which will be less attention paid to other consumer issues. State DOJ staff are just human, they are probably stressed out and worried like the rest of us, and they can only give so much.
It is logical to assume that more traditional scams involving, say, car repair or mortgage fraud are firmly on the back burner right now in many state attorney general offices. Will there be an increase in funding of this work? What will the long-term shape of consumer protection look like? How long will the focus be on protecting health care consumers? We will have to see.
The second major impact of the coronavirus for state DOJ work will be to throw many attorneys general into areas of law so new that they may as well be called experimental law. Ohio Attorney General Dave Yost no doubt found himself surprised over the legal dust-up around canceling Ohio's elections, for example.
The story is murky, and we need a lot more details to come out, but the state canceled Ohio's March 12 elections due to the public health crisis — despite a ruling from a county judge that they not be cancelled. It was an — here's that word again — unprecedented moment for state attorneys general, and a clear example of an attorney general being pushed with strained resources to make complex judgment calls in a unique legal situation.
There will be many more experimental legal issues for attorneys general to handle. Colorado Attorney General Phil Weiser is requesting residents to stay home, leaving huge questions about enforcement if they don't actually stay home. What does the tension between public health quarantines and our constitutional right to assembly look like? What about the tension between quarantines and the right to religion?
Arizona Attorney General Mark Brnovich is now calling for financial institutions to delay loan collections for 90 days for customers in financial hardship, and Vermont Attorney General T.J. Donovan has decided to halt prosecutions for misuse of government benefit programs also for 90 days. All attorneys general will soon enough have to decide their position on what to do about full prisons in the midst of this crisis, as well as how to protect voting and transparency in government meetings.
And what happens if courts close or juries refuse to show up? The list of new issues is endless and will come at them very fast.
State attorneys general tend to be fairly conservative in their legal actions, and like to plumb the depths of many lawyers before taking bold action. They can't use this approach anymore — new questions are being raised constantly, and attorneys general may not be able to access the deep legal advice they are accustomed to due to their staff and advisers dealing with the personal impacts of the crisis. Simply put, everything has changed for attorneys general and their legal work will be much harder.
One final impact of the coronavirus crisis will be smoother sailing for both Obamacare and internet monopolies. For many years, Republican state attorney generals have filed suits against Obamacare and it has been a core political message for them.
The U.S. Supreme Court has accepted a case, originally brought by attorneys general led by Texas Attorney General Ken Paxton to strike down the law entirely, which President Donald Trump continues to support. But the entire context of the lawsuit has changed.
The Supreme Court will find it much harder to strike down, say, the protection for patients with preexisting conditions — just as millions of Americans gain the new preexisting condition of COVID-19. No crystal balls here, but it is difficult to imagine the court gutting Obamacare during a widespread public health crisis — and it is equally difficult to imagine Republican attorneys general will continue to find this to be an appealing message politically. In fact, I can't find any record since the crisis began of any Republican attorney general calling for Obamacare's repeal.
It is equally difficult to imagine attorneys general pursuing with the same fervor internet monopolies and violations of online privacy in the wake of our health crisis. A tide of public and political pressure has been building for many years to better protect Americans from being taken advantage of by companies like Facebook Inc. and Google Inc., and a bipartisan group of attorneys general has been working to rein those companies in.
How can such complicated, resource-heavy, intense work continue during this calamity? At a minimum, this work will be delayed, perhaps indefinitely as public concerns shift. That is not to say the big internet companies are off the hook, as they face new vulnerabilities over online price gouging and the spread of health misinformation.
State attorneys general are working in a strange new world, and at least for this year will scramble the capabilities of their offices and the focus of their policies. It is impossible to see how this will ultimately turn out, but we are already seeing changes, as consumer law gets remade, state DOJs turn their focus to more experimental questions of law, and Obamacare and internet monopolies get a respite from their legal complications.
Shum Preston is a political consultant. He previously served as a senior adviser to former California Attorney General Kamala Harris, and is the founder of @TheAgeOfAGs, which tracks the policies and politics of state attorneys general.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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