Nessel reversing 16 years of GOP ideology in Attorney General’s Office

Feb. 24-- Feb. 24--LANSING -- She has been in office for just over six weeks, but Michigan Attorney General Dana Nessel has dramatically changed the political trajectory of the office after 16 years of Republican control.

Nessel, a Plymouth Democrat, has withdrawn the state from 23 controversial cases that former Attorney General Bill Schuette joined during his eight years in office.

They range from abortion and gun rights cases to environmental issues and religious freedom battles. Schuette joined with Republican governors in the vast majority of cases to support the conservative point of view.

In contrast, Nessel joined with 15 other attorneys general around the nation on Monday to fight President Donald Trump's declaration of a national emergency at the southern border, bypassing Congress, which only allocated $1.3 billion for a wall at the border while he had demanded more than $5 billion.

"When you look at things like the National Guard and the fact that we have 10,000 people assigned to the National Guard in Michigan, I'm very concerned that this money for this manufactured emergency is going to divert funds that can be used for our safety and protection," she said. "My job as attorney general is to make certain that the people of our state are protected from unconstitutional acts by the president. I don't think POTUS cares very much about the constitution. So, it's up to the attorneys general from around the country to make sure he's held accountable."

Nessel doesn't mince words when she talks about the president or the lawsuits that Schuette joined.

When she announced eight cases she dropped a month after taking office, Nessel said, "I will not use this office to undermine some of the most important values in our state."

But while Schuette didn't respond to requests from the Free Press to comment on the change of direction in the office, Nessel is running afoul of Republicans, especially lawmakers in the Legislature who are objecting to some of her actions.

The lawsuit opposing Trump's emergency declaration has drawn particular ire. A resolution was introduced on Thursday urging her to drop the matter, and state Rep. Michele Hoitenga, R-Cadillac, sent her a letter saying she should stay out of federal matters.

"I'd prefer her to concentrate on state issues, especially since the state of Michigan elected President Trump," she said. "My office has received hundreds of calls and 20 to 1 are in favor of stopping this lawsuit."

Hoitenga is particularly incensed about the issue because the son of one of her constituents -- U.S. National Park ranger Kris Eggle -- was shot and killed in 2002 as he was helping border patrol agents try to apprehend two illegal immigrants in Arizona.

"I have told the Eggles from the beginning that if there was anything in my power I could do at the state level to secure the borders, I would do it wholeheartedly," she said.

Hoitenga never wrote any letters objecting to cases Schuette joined, although she said there probably were some that she didn't support, especially if they involved federal, rather than state, issues. And she acknowledged that residents of Michigan also elected Nessel, two years after giving Trump a 10,704-vote victory in the state.

"But she is really setting the tone for what the next four years might look like and that's going to be a rough ride for Michiganders," she said.

Nessel, an unabashed liberal who helped argue the case before the U.S. Supreme Court that resulted in the legalization of same-sex marriage, won the Nov. 6 election with a 115,000-vote margin over Speaker of the House Tom Leonard, R-Dewitt.

So it's not surprising that she has withdrawn from so many cases championed by Schuette.

The fight over abortion services

Schuette joined cases to support state laws in Kentucky and Ohio that require abortion clinics to have transfer and transport agreements with hospitals. With many hospitals not providing abortion services, the law could result in the closure of many abortion clinics in the state. He also supported laws that make it a felony for health care providers to perform an abortion if they have knowledge that the fetus has Down syndrome; require health care facilities to dispose of fetal remains in the same way as other human remains -- by burial or cremation -- and prohibit abortion decisions made solely on the basis of race, gender or disability, such as a pregnant woman deciding to abort a fetus because of a Down syndrome diagnosis.

Another case involved the State of Ohio, which, in 2016, revoked federal funding for health prevention programs such as HIV/AIDS and breast cancer screening, offered by Planned Parenthood of Ohio. The U.S. Court of Appeals for the 6th Circuit ruled in April 2018 that the law was unconstitutional.

And another case was focused on the State of Texas' refusal to provide an unaccompanied immigrant teenager access to an abortion provider.

The cases: EMW Women's Surgical Center v. Glisson; Pre-Term Cleveland v. Himes; Planned Parenthood of Ohio v. Himes; Box v. Planned Parenthood of Kentucky and Indiana; Garza v. Azar.

Environmental rules and regulations

Schuette also joined other attorneys general to fight environmental groups' objections to the use of a deepwater injection well to dispose of treated wastewater in Maui, Hawaii. The environmental groups said the disposal method was a contributing factor to algae blooms and coral decline in the area.

In addition, Schuette joined a lawsuit supporting ExxonMobil's efforts to stop the State of Massachusetts from getting documents for its investigation into how much the company knew about the role its products played in global warming. The U.S. Supreme Court declined last month to hear Exxon's appeal in the case.

"I saw a case like that as hurting our residents much more than helping our state," Nessel said. "And I didn't see why we needed to be working so earnestly in support of Exxon."

The cases: The County of Maui, Hawaii, v. the Hawaii Wildlife Fund; Kinder Morgan Energy Partners v. Upstate Forever; ExxonMobil v. Healey.

Voting rights and campaign finance laws

Schuette joined several lawsuits defending state laws that made voting more difficult, including requiring citizenship documentation or state identification to register and vote in Kansas and Alabama, and opposing the restoration of voting rights to former felons in Florida.

He also joined a case opposing a California law that required disclosure of people who contributed more than $5,000 to nonprofits. Americans for Prosperity argued that the disclosures violated free speech rights, while California's attorney general argued that more transparency was appropriate.

The cases: Fish v. Kobach; Greater Birmingham Ministries v. Merrill; Hand v. Scott; Americans for Prosperity Foundation v. Becerra.

Immigration enforcement and citizenship

Schuette also joined a lawsuit to support the U.S. Department of Commerce's plan to add a citizenship question to the 2020 Census. Seven lawsuits against the question have been filed and the case is still being heard in U.S. District Court in Maryland.

He also sided with Indiana law enforcement officials over Marion County's cooperation with Immigration and Customs Enforcement in enforcing and holding Antonia Lopez-Aguilar for four days after a traffic stop. In 2014, Lopez-Aguilar appeared in court in Indianapolis to take care of a ticket for operating a car without a license. After the case was closed and Lopez-Aguilar was leaving the courthouse, he was picked up by a Marion County sheriff's deputy, who was acting on a detainer arrest warrant from ICE. And Schuette supported the U.S. Department of Justice's opposition to California's sanctuary laws that say that law enforcement officials are not required to enforce ICE detention orders.

The cases: Department of Commerce v. the U.S. District Court of the Southern District of New York; Lopez-Aguilar v. Marion County; United States v. California.

Religious freedom and LGBT cases

Schuette was one of 13 attorneys general to support a lawsuit by football coach Joseph A. Kennedy, who was suspended and then fired by the Bremerton School District in Washington for violating school policy by kneeling and praying on the 50-yard line of the football field after games while students were still in the stands. The U.S. Supreme Court refused to take up Kennedy's case last month, basically upholding the coach's dismissal from the district.

In three cases brought by the Freedom From Religion Foundation, which advocates for the separation of church and state, Schuette opposed the atheists' position on issues including challenging the seal of Lehigh County because it included a cross and thus was an endorsement of religion; a policy that required using only ordained clergy to offer prayers to start congressional sessions in the U.S. House of Representatives and continuing to allow clergy to claim exemptions for housing costs at church-provided parsonages.

Schuette also joined a lawsuit to support Midwest Geriatric Management in Missouri, which in 2016 withdrew an offer of employment after it found out that Mark Horton was gay. Horton is appealing a U.S. District Court ruling last year that dismissed Horton's complaint.

The cases: Joseph A. Kennedy v. Bremerton School District; Barker v. Conroy; Freedom From Religion v. Lehigh County; Gaylor v. Mnuchin; Horton v. Midwest Geriatric Management.

Local ordinances that toughen gun laws

Schuette joined two gun-related cases to oppose bans on interstate handgun sales and the ability of the City of New York to enact restrictions on the transportation of guns, even if they're unloaded and locked, out of a community.

The cases: Russell Mance, Jr., v. Matthew G. Whitaker; New York State Rifle & Pistol Association v. the City of New York.

State laws that are tougher than federal laws

Schuette joined a lawsuit opposing California's 2004 ban on the sale of products, such as foie gras, that are made from force-feeding ducks and geese to produce the delicacy. The U.S. Supreme Court declined to hear an appeal in the case last month, upholding the state's ban on such products.

The case: Ass'n des Eleveurs de Canards et d'Oies du Quebec v. Xavier Becerra.

Nessel flips the switch, joining several suits

While Nessel has withdrawn from nearly two dozen cases that had been filed by her predecessor, she has also joined others.

She has intervened in a federal lawsuit, along with 19 other states, to defend the Patient Protection and Affordable Care Act against a decision that came out of the U.S. District Court in Texas that held that Obamacare was unconstitutional.

"The Affordable Care Act provides important protections -- including protecting people with pre-existing conditions -- and access to health care for hundreds of thousands of residents in Michigan," Nessel said.

The entry into that lawsuit comes after Schuette entered into nine lawsuits that sought to change and weaken the Affordable Care Act.

She also has signed on to federal lawsuits that challenge the U.S. Department of Homeland Security's policy of denying access to asylum to refugees and termination of Temporary Protected Status for refugees from Sudan, Nicaragua, Haiti, and El Salvador, and U.S. Department of Health and Human Services rules that protect religious and anti-abortion organizations from having to provide abortion-inducing drugs to their employees.

Contact Kathleen Gray: 313-223-4430, [email protected] or on Twitter @michpoligal.

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