Six attorneys general sent a letter to President Joe Biden warning him that many of the executive orders he issued in his first week in office will be challenged on constitutional grounds.
Any actions he takes that might exceed statutory authority, are inconsistent with constitutional law or risk civil liberties could result in legal action brought by states, attorneys general from West Virginia, Arkansas, Indiana, Mississippi, Montana and Texas warned in the letter.
Litigation is never a first option, the attorneys general said in the letter, and they offered to help the new administration implement polices that are “consistent with the Constitution and the rule of law.”
But if such policies are not implemented, and the president signs “unconstitutional laws passed by Congress, it will be our responsibility and duty to challenge those laws in court,” they wrote.
“If cabinet officials, executive officers, and agencies go beyond the bounds of their statutory authority, fail to follow legally required procedures, or fall short of the bedrock Administrative Procedure Act obligation of reasoned decision making, it will likewise be our responsibility to take action,” they added.
The Administrative Procedure Act, which governs the agency rulemaking process, has been frequently invoked to challenge executive branch rules and regulations.
Many of the roughly 30 executive orders Biden signed overturned Trump-era policies; others established new ones.
“The President cannot cut constitutional corners or shirk statutory strictures without inevitably doing more harm to our country than good,” the attorneys general argued, urging the new administration to pursue policy priorities that “honor the core constitutional tenets which should be appreciated and respected by every person entrusted with the honor and burdens of the presidency.”
In the letter, they also raise two areas of concern for potential federal overreach, issues of freedom of religion and religious expression and the right to bear arms.
Within a day of issuing an order halting deportation and changing immigration policy, the state of Texas was the first to sue the administration. A federal judge sided with Texas, preventing the order from going into effect.
Also within a day of issuing an order to halt oil and gas leasing on federal lands, the administration was sued by the Western Energy Alliance.