A Bill to Bench the State’s Top Cop

President Donald Trump has signed more than 100 executive orders since he took office less than three months ago. In turn, Democratic state attorneys general, including North Carolina’s Jeff Jackson, have rushed to file lawsuits challenging those actions. 

But if a new bill becomes law, Jackson would no longer be able to join the fight. Senate Bill 58 would bar the AG from both filing “any action” or advancing “any argument” that “would result in the invalidation of an executive order issued by the President of the United States.”

It would be the only such limitation on a state attorney general in the country. The state Senate passed the legislation last month, and the bill is now sitting in a House committee. It is not known when the full House will take up the legislation. 

The proposed law reflects a growing trend in North Carolina politics—when Republicans lose a statewide office, they seek to weaken that office before the winning Democrat takes over. 

Trump easily won North Carolina last November, but Republicans lost the statewide races for governor, lieutenant governor, attorney general, secretary of state, and state school superintendent. Republicans had hoped that U.S. Rep. Dan Bishop, the hard-line conservative most known for sponsoring the infamous “bathroom bill,” would break a century-long Democratic hold on the AG’s office. Instead, Jackson, the former congressman who has amassed 2 million followers on TikTok, won with 51 percent of the vote. 

Republican legislators, who also lost their House supermajority, swiftly rushed through a sweeping bill before the new legislature took office limiting the attorney general’s ability to challenge state laws the General Assembly passes. It also prohibits the AG from participating in any legal action in other states that could invalidate North Carolina law, in addition to other limits on the power of elected officials. In addition to the AG’s office, the law also stripped certain appointment powers from the governor and gave authority of the State Board of Elections, an independent agency, to the state auditor, who is a Republican. 

Now Republicans want to go even further in limiting Jackson’s power by blocking his ability to challenge presidential actions. In the early weeks of the Trump administration, the AG has joined with other states in suits over Trump’s attempts to eliminate birthright citizenship, freeze federal funding until an administrative review, cut medical research funding from the National Institutes of Health, and allow Elon Musk’s Department of Government Efficiency (DOGE) to access people’s personal data. 

Ben Conroy, Jackson’s press secretary, said in a statement that Jackson has filed those lawsuits in order to “protect billions in funding for Western North Carolina, our public universities, and rural jobs.” 

“In each case, judges across the country have agreed that the federal government’s actions were likely unlawful or unconstitutional,” Conroy said. “Any legislation that undermines the independence of the Attorney General’s Office is bad for our state and its people.” 

None of the Republican sponsors of the bill returned messages seeking comment. Senate Leader Phil Berger Sr. and House Speaker Destin Hall also could not be reached for comment, but Republicans have argued that the attorney general should not be fighting policy battles in court. Sen. Timothy Moffitt, a Republican who represents Henderson, Polk and Rutherford counties, is a primary sponsor of the bill and has described it as “housekeeping.” 

“I just think that anything that would rise to a level of concern, this General Assembly is capable of interceding,” he said in February. 

‘Just Want to Win’

What’s happening in North Carolina is part of a larger trend, said James Tierney, a former attorney general for Maine and a lecturer at Harvard Law School. It used to be that if a particular party lost a race, it would figure out how to win in the next election cycle, he said. That’s not the case anymore, Tierney said. 

“We just want to win,” he said of the mindset. “We just want to be in power.” 

Tensions between the Republican-led General Assembly and the attorney general’s office have been boiling over the past few years. 

The attorney general is the state’s top prosecutor and as such must defend state legislators, departments, and agencies in court. But Republicans castigated former Gov. Roy Cooper, who as attorney general refused to defend House Bill 2, calling the law a “national embarrassment.”

Known as the “bathroom bill,” the law prohibited transgender people from using public bathrooms aligned to their gender identity. A national backlash against the law ensued, including performers canceling concerts and athletic conferences such as the Atlantic Coast Conference pulling championship tournaments out of the state. Additionally, a number of lawsuits were filed, including one from the U.S. Department of Justice. 

Republicans were also upset when Cooper declined to defend the controversial 2013 voter ID law after the Fourth Circuit of the U.S. Court of Appeals struck it down, concluding that the law was enacted with “discriminatory intent.” And they also bristled at Stein for joining other Democratic attorneys general in lawsuits over a travel ban targeting Muslim countries during Trump’s first term and over efforts to cut funding for Planned Parenthood. 

In 2017, Stein was forced to eliminate 45 positions in his office after the General Assembly passed a budget that cut his funding by $10 million. Republican leaders said the cuts were not political, but Berger criticized Stein for going beyond his job duties. 

“The attorney general’s job is to represent his client, and his client is the state of North Carolina, and in many respects, it’s the state of North Carolina as represented by the elected representatives of the state,” Berger said at the time. “There have been instances where the attorney general seems to believe that that’s not his job, that his job is to do whatever he thinks is appropriate.”

Bishop, Jackson’s opponent, was eager to join the legal fray if he were elected AG and Democrat Kamala Harris had won the presidency.

“I’d like to participate in that, and I’ll be a robust participant,” he told PBS NC’s Kelly McCullen in August 2024. 

Purple State Blues

State attorneys general have taken on a more prominent national role in recent years, joining forces to challenge both private corporations and federal rules. 

The change started during President Bill Clinton’s administration, said Marquette University political scientist Paul Nolette, with the tobacco settlement in the late 1990s–the “big bang of AG activism,” as he put it. State attorneys general pooled their resources to force tobacco industry leaders to reveal what they knew about the health risks of tobacco use. That led to a historic $206 billion settlement.

Democratic attorneys general have used their position to push the federal government to enforce environmental regulations. Such legal action reached a peak during the Obama administration, prompting increasing polarization of the office nationally, Nolette said. New York, for example, brought suit over environmental rules that AG Eliot Spitzer claimed would reverse anti-pollution standards. 

And litigation has since soared. Democratic attorneys general filed suit against Trump 160 times during his first term over issues such as immigration, the travel ban, and environmental rules, with a success rate of 83 percent, according to a database Nolette maintains. So far this year, Democratic attorneys general have sued the Trump administration 12 times. 

Republican attorneys general, whether it was a coalition or just one, sued the Biden administration 133 times during his time in office over protections for LGBTQ people, environmental rules, and vaccine mandates, Nolette’s database shows. Republicans had a success rate of 74 percent, the database said. 

The lawsuits filed against Trump’s executive order on birthright citizenship resulted in several federal judges issuing nationwide injunctions. The issue is now before the U.S. Supreme Court. 

Not all the litigation has been partisan; there have been some bipartisan victories. Stein joined with other attorneys general across the country in suing pharmaceutical companies involved in the opioid crisis. In 2022, that resulted in a $26 billion agreement with four companies—Cardinal Health, McKesson, AmerisourceBergen, and Johnson & Johnson. It was the second largest attorney general settlement in history. 

And at times the political tension has been reversed—Democrats tried to strip a Republican attorney general of power. Nolette said he can remember one incident 20 years ago in Washington. Democrats controlled the state legislature, and they were upset that the Republican attorney general refused to join environmental lawsuits against President George W. Bush. Legislators threatened to cut the AG’s budget but never did, Nolette said. 

Most states’ attorneys general come from the same party that controls their legislature. In the states where there’s a split, tensions between Democratic AGs and Republican legislatures have continued to simmer. But to date, no other state legislatures have pursued similar limitations on the AG’s office like the one before the N.C. General Assembly. 

At least four other states currently have an attorney general whose political party is opposite of the state legislature—Wisconsin, Pennsylvania, Arizona, and Michigan, Nolette said. Those states haven’t gone North Carolina’s route because they have Democratic governors who have a strong veto against a weak Republican majority in the state legislature. Republicans in North Carolina have a stronger majority in the General Assembly but can only override the governor’s veto if they have solid Republican support and at least one Democratic House member on their side. 

Iowa is the only other state that came close to what North Carolina is now attempting, according to Nolette. In 2019, Iowa lawmakers considered a bill that would have limited Democratic Attorney General Tom Miller’s ability to join multistate lawsuits. Miller opted to enter into an agreement with Republican Gov. Kim Reynolds to get her approval before joining any multistate lawsuits.  He ran for re-election in 2022 but lost to Republican Brenna Bird. The agreement expired once Miller left office. 

Tierney said the North Carolina bill wouldn’t really change the outcome of AG suits. A suit that might have had 22 Democratic state attorneys general signed on would now have 21. Ultimately, the legal arguments about birthright citizenship aren’t going to hinge on anything specific to North Carolina, he said. 

But it might matter in legal arguments if Trump goes through with his threats to either eliminate the Federal Emergency Management Agency or severely cut it, he said. FEMA responds based on the specific needs of particular areas, such as Western North Carolina, he noted. It would be important for North Carolina’s AG to weigh in about those factors if FEMA was eliminated, Tierney said.  

But Moffitt has already said he’d seek to do more if the AG defied the General Assembly. 

“I could contemplate that the action that this body could take would be to take Chapter 114, Section 2, and just completely zero it out, and that way, the Attorney General is a feckless, empty shell of a position that has no authority to do anything,” he said. 

Michael Hewlett is a staff reporter at The Assembly. He was previously the legal affairs reporter at the Winston-Salem Journal. You can reach him at michael@theassemblync.com.