Editor’s column: Slatery’s tenure as AG shows mixed legal bag

A week or so ago, a tweet about Tennessee government caught my eye: “We don’t legislate by law, we legislate by lawsuit,” wrote someone in response to another story about Gov. Bill Lee’s legal woes. 

I don’t remember which one of the Lee administration’s suits to which the Twitter wag referred, and that’s the problem: Lee has lawsuits coming and going to such an extent it’s hard to keep up with all of them. 

A review of the Tennessee Attorney General’s website shows a flurry of both offensive and defensive activity over the last few months: 

• On Aug. 30, Attorney General Herbert Slatery filed suit in federal court against President Joe Biden’s administration over protections extended to LGBTQ people, particularly transgender people. The suit, in which Slatery was joined by 19 other attorneys general, stems from a June decision by the U.S. Department of Education that discrimination of students based on gender identity would be considered a violation of Title IX. 
• On May 20, the AG’s office filed a motion to intervene in a federal lawsuit filed by the Tennessee Justice Center challenging the Medicaid Block Grant. Mind you, Tennessee has failed to take $1.4 billion in federal Medicaid expansion funds and leaving 300,000 Tennesseans without access to health insurance, opting instead for an experimental block grant passed in the last days of the Trump Administration. 
• On April 30, Slatery joined Kentucky Attorney General Daniel Cameron in suing Treasury Secretary Janet Yellen. The suit argues that the Biden administration’s American Rescue Plan usurps states’ authority by setting a federal tax policy and would have the “likely and foreseeable effect of chilling almost any legislative action.” The ‘states rights’ argument is that the COVID-era funding keeps states from lowering taxes for their citizens. First, Tennessee doesn’t have an income tax and thus far, the legislature has shown no inclination to lower our regressive sales tax rates. In fact, chilling legislative action sounds like a good idea, given some of the action they take.

This doesn’t include ongoing litigation pertaining to the law requiring women who want an abortion to wait 48 hours before they can get one, nor have I mentioned that Slatery signed on to an amicus brief as part of a challenge to the results the 2020 presidential election that alleged voter fraud. 

Of course, one of the most notable cases of the last few years is the legal brouhaha around Lee’s education savings accounts, otherwise known as voucher schools. After more than two years of legal wrangling and rulings in lower courts the program is unconstitutional, the Tennessee Supreme Court heard arguments in the case in June and July but hasn’t ruled yet.

It may be time for us to change our nickname from ‘The Volunteer State’ to the ‘Sue Me State,’ which has a nice ring to it, similar to Missouri’s “Show Me State” tag.

This list at least serves as a partial explanation of why Slatery asked the Tennessee General Assembly for an additional $700,000 during the 2021 legislative session to hire a clutch of new attorneys to defend new laws, and why Lee himself requested an additional $2 million – a bump from $5 million to $7 million – to cover costs associated with the state’s substantial litigation. 

Slatery, who was appointed to serve as Attorney General in 2014 by the Tennessee Supreme Court in former Gov. Bill Haslam’s second term, is undoubtedly conservative, but I can live with conservative.  In his response to Obergefell v. Hodges in 2015, his response was along the lines of ‘I think Tennessee citizens should be able to vote on this issue but since the Supreme Court has ruled, I’ll make this work smoothly.’ 

In fact, a review of the AG’s site dating back to Slatery’s appointment shows much more good work accomplished for Tennesseans over the last seven years than wild goose chases. Slatery’s office has hammered merchants of the state’s opioid crisis, from Purdue Pharma, maker of OxyContin to Knoxville grocery chain Food City for unlawful opioid sales. He’s argued to erase all educational debt for disabled veterans and his office has joined bipartisan coalitions to regulate price gouging during the pandemic. 

I was, in fact, pleasantly surprised when I read through seven years of AG Slatery’s news releases, having been attuned to some of the recent cases that have run up the taxpayers’ tab. 

There is a line of demarcation that comes after Haslam vacated office and after Lee took office in 2019: It is after that point that we see the state’s top attorney taking on cases that stand little chance of winning, do nothing to aid Tennesseans and are costly, to boot. 

You may not like Slatery’s actions, but he’s not acting independently. And if you are displeased with Slatery, look no further than Lee.