Guest Commentary: David Skaggs – Phil Weiser Will Protect the Rights of Coloradans as Our Attorney General

Guest Commentary: David Skaggs – Phil Weiser Will Protect the Rights of Coloradans as Our Attorney General

In 1999, after I stepped down from Congress, I took my experience to the classroom. That fall, I taught a seminar on separation of powers at the University of Colorado Law School with a (then) young law professor, Phil Weiser. The course offered me a chance to get to know Phil and to reflect on the importance of separation of powers and checks and balances.

That topic is more important today than ever because Congress is not exerting its “check” and holding the executive branch accountable. State Attorneys General—and not Congress—are now acting as a crucial—and often the only—check against unlawful or unconstitutional action by the executive branch. That’s one reason I am so happy Phil Weiser is now running to be Colorado’s next Attorney General.

State AGs and the Separation of Powers

Colorado’s Attorney General represents all Coloradans: defending our civil rights, protecting our land, air, and water, and fighting for consumers, workers, and citizens to be treated fairly. A central role that should be played by the AG’s office is to protect Coloradans’ rights from infringement by the federal government. So if the federal government does something unconstitutional or illegal, our AG needs to be there to protect us. The ongoing litigation over the unconstitutional travel ban—brought by a number of brave AGs (not including Colorado’s)—is a case in point.

At this challenging time, the system of checks and balances that the Constitution’s Framers envisioned has special importance and relevance. But a key element of that system is being neglected: Congress is not providing the rigorous oversight of the executive branch; Congress is not doing its job.

Of course, separation of powers, and its corollary of checks and balances, pertains not just to the relationship between the three branches of the federal government, but also to the relationship between the federal government and the states.  This federal system affords another independent check on executive authority. When the executive branch does not follow the laws faithfully and Congress does nothing, the State AGs can act as the main check on this conduct.

A Case in Point

The case of civil forfeiture (taking private property even if only tangentially involved in criminal activity and without due process) demonstrates the importance of electing State AGs who can stand up to Washington and defend our rights. Under President Obama, the Justice Department cut back on this practice, concluding that it was wrong to seize property without any accompanying criminal investigation or warrant in place.

Just recently, Attorney General Jeff Sessions reinstituted the practice and rejected the concerns that it violates the “due process” rights of affected persons. As one conservative commentator put the issue, “By expanding government power to take property without appropriate due process, even when state laws don’t allow it, Sessions is signaling he answers to no one.” Here in Colorado, the legislature just passed protections on the use of this power, and we don’t want the federal government to override that policy. To protect Colorado’s sovereign authority, we need a State AG who will to stand up to Washington to protect our rights.

A Government of Laws, Not People

Our government is a government of laws, not of people who can simply do what they want. Former Deputy Attorney General Sally Yates has flagged the threat to our democracy and has explained that the fundamental independence of the Justice Department is now at issue. Similarly, the Washington Post has emphasized that “The United States has been a role model for the world, and a source of pride for Americans, because it has strived to implement the law fairly.” State AGs uphold that foundational principle of our constitutional system as well when they challenge illegal executive behavior.

We must work hard to continue this tradition. I know that Phil Weiser, as Colorado’s next Attorney General, will ensure that Colorado enforces the laws fairly and with equal justice for all.

In 1974, our nation faced a basic challenge to the rule of law: would the other branches of government stand up to an executive branch engaged in lawless conduct? After he was fired as special prosecutor, Archibald Cox stated that “Whether ours shall continue to be a government of laws and not of men is now for Congress and ultimately the American people” to decide.

In 1974, Congress, and then the American people, spoke loudly and clearly on the need to embrace our constitutional traditions and support the “rule of law.” The result, as my predecessor in Congress Tim Wirth noted in endorsing Phil Weiser to be our next AG, was a period of political reform and renewal.

In 2018, we will face a similar test and opportunity. By electing leaders like Phil Weiser, Colorado and the nation can continue to fulfill our constitutional traditions and ideals. I encourage you to join me in supporting him.

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