Attorney General Duties Are a Frequent Target of Legislative Gamesmanship 

The Wisconsin Supreme Court unanimously ruled on Tuesday that shifting certain powers from the Democratic attorney general to the Republican-controlled legislature was unconstitutional. The case is the culmination of a six-year dispute over a law that gave a legislative committee authority to approve or disapprove civil settlements reached by the state attorney general.

This kind of legislative tinkering with the roles of other elected officials has become increasingly commonplace as state legislatures grow more polarized and partisan gerrymandering reduces the representativeness of state legislative bodies. Attorneys general, in particular, have been targeted in multiple states where they disagree politically with the legislature — undermining the will of the voters who elected them. (Forty-three of 50 state attorneys general are selected through statewide elections.) When the legislative majority and state attorney general represent the same party, by contrast, legislatures have granted additional powers to the state attorney general at the expense of officials representing a different political party, like the governor or local prosecutors.

Legislatures Reducing Powers of Politically Opposed State Attorneys General

The Wisconsin case concerns a 2018 lame-duck power play. After Democrats won statewide offices, including governor and attorney general, the Republican legislature and outgoing Republican governor enacted laws that reduced the power of the incoming executive branch. The law severely limited the discretion of new attorney general Josh Kaul by requiring him to receive approval from a Republican-led legislative committee before settling civil cases on behalf of the state.

The Wisconsin Supreme Court declined to strike down the law in its entirety in 2020. But its recent opinion in Kaul v. Wisconsin State Legislature held that certain applications of the law violate the Wisconsin Constitution’s separation of powers: The law cannot require legislative approval for settlements in civil actions to enforce state law or protect the interests of state departments because those cases involve “core powers” of the executive branch.

Last year, the North Carolina legislature similarly stripped power from the attorney general, who belongs to a different political party than the legislative majority. Democrats in North Carolina won statewide executive offices in November 2024 and Republicans lost their veto-proof legislative supermajority, prompting the legislature to quickly enact Senate Bill 382 before the new officials took office. The bill eliminates the attorney general’s broad statutory authority to bring cases on “all matters affecting the public interest.” Prior attorneys general invoked this provision in a wide range of cases, from challenges to the first Trump administration’s EPA rules, to utility rate-setting, and to litigation related to the opioid epidemic. The bill also prevents the attorney general from taking positions in lawsuits contrary to those of the legislature.

In March, the North Carolina senate advanced another bill intended to limit the attorney general’s power, this time by preventing him from challenging presidential executive orders. That bill may lack the votes to pass over a veto. 

Legislatures Increasing Powers of Politically Aligned State Attorneys General

Recent legislation in Kansas, Kentucky, Maryland, Missouri, and Tennessee, meanwhile, demonstrates how legislatures politically aligned with their state’s attorney general can increase the attorney general’s powers. 

In April, Kansas’s Republican legislature overrode the Democratic governor’s veto on a bill that broadened the authority of the Republican attorney general’s office to investigate fraud in state welfare and assistance programs. Lawmakers opposed to the bill called it an unnecessary “power grab” by the attorney general, given that the department responsible for administering assistance — which is led by a gubernatorial appointee — already has its own fraud investigations unit.

In response to emergency Covid-19 orders implemented by Kentucky’s Democratic governor, the Republican-controlled legislature in 2021 passed a series of laws requiring the governor to get approval from the Republican state attorney general before suspending any statute during an emergency. The Kentucky Supreme Court upheld the laws.

Legislatures sometimes increase their attorney general’s power to displace the authority of local officials. The Republican-led Tennessee legislature, for example, in 2023 passed a law requiring the attorney general to replace local district attorneys in defense of death penalty convictions on collateral review. The law — upheld by the Tennessee Supreme Court, which appoints the attorney general — could lead to more executions, since the current Republican attorney general is a more aggressive supporter of the death penalty than some local prosecutors.

In 2023, the Democratic Maryland legislature transferred authority away from local prosecutors by empowering the Democratic attorney general to prosecute deadly police-involved encounters instead of referring those investigations to local state attorneys. Many elected prosecutors opposed the law.

State legislatures may also enhance the attorney general’s litigation powers. In April, Missouri’s Republican legislature and governor enacted a law that allows the Republican attorney general to appeal state court preliminary injunctions — generally unappealable — whenever they enjoin state officials from implementing or enforcing state law. The law emerged as a response to two preliminary injunctions blocking regulations restricting abortion access.

The attorney general immediately used his new power to appeal those injunctions, prompting a challenge to the new law’s constitutionality. The Missouri Supreme Court struck down the injunction — effectively halting all abortions in the state — but did so in response to an earlier writ of mandamus rather than one of the attorney general’s appeals under the new law.

Legal Limits on Changes to the Attorney General’s Powers

State legislatures seeking to broaden or restrict the statutory powers of state attorneys general must do so within the limits of their state’s constitution. As seen in the Wisconsin case, constitutional separation of powers can protect the authority of attorneys general. Some state constitutions, like those of California and Louisiana, also enumerate specific duties and powers for their attorney general. The legislature cannot eliminate these constitutional powers through ordinary lawmaking; such change requires constitutional amendment.

Other states — like Arizona, Kentucky, North Carolina, Virginia, and Wisconsin — lack constitutionally enumerated attorney general duties: Their constitutions leave attorney general powers to be “prescribed by law.” As a result, although those state constitutions generally place attorneys general within the state executive branch as the state’s chief legal officer, the powers and duties of the state attorney general come from statutes passed by the state legislature. As illustrated above, leaving the powers of state attorneys general up to state legislatures creates an opportunity for gamesmanship.

Even where state constitutions do not contain “prescribed by law” language, some state courts have held that legislatures can alter the scope of the attorney general’s authority, as seen in Kansas and Missouri. 

But constitutional and statutory language is not the only source of attorney general authority. Many state attorneys general also retain powers under judicially recognized common law. In Illinois, the legislature cannot restrict the attorney general’s common law powers. However, most states that recognize common law powers of attorneys general also recognize the legislature’s ability to limit those powers.

Other attorneys general cannot turn to common law when their statutory authority is reduced. In Wisconsin, the state supreme court has interpreted the state constitution’s “prescribed by law” language to mean that the attorney general may only act pursuant to statutory authority.

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Recent experiences suggest that state legislatures can and do manipulate the powers of state attorneys general — decreasing powers of attorneys general the legislatures oppose and increasing powers of those they support.

Dylan Erikson is a student at NYU Law School. He previously participated in the Brennan Center’s Public Policy Advocacy Clinic.

Suggested Citation: Dylan Erikson, Attorney General Duties Are a Frequent Target of Legislative Gamesmanship, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jun. 18, 2025), https://statecourtreport.org/our-work/analysis-opinion/attorney-general-duties-are-frequent-target-legislative-gamesmanship