AUGUSTA, Maine — Gov. Paul LePage has drafted a bill to strip the attorney general of authority over the rulemaking process used by state agencies to implement laws approved by the Legislature.

LePage has criticized judgments by Attorney General Janet Mills that some regulations he wanted were illegal. Rather than accept his lawyer’s legal advice, the governor would eliminate the requirement that she sign off on new state agency rules.





“We have a stack of regulations that we were entrusted to write and we can’t get them through because we have an attorney general who says it’s illegal. It’s killing us,” said LePage, while mulling the plan in November.

The bill represents the latest salvo in a long battle between LePage, a Republican, and Mills, a Democrat. Currently, the AG must approve the “form and legality” of any state agency’s new rule or regulation, but the bill would limit Mills to an advisory role only.

It’s wrong, LePage says, for an attorney general chosen by the Legislature to have “veto power” over the policy goals of a governor, who is elected by voters.

“This [bill] dissolves that veto power,” said LePage spokeswoman Adrienne Bennett on Friday. “The executive branch will still advise all departments to go through the AG’s office for legal counsel and advice. We’re still encouraging that guidance. However, if there’s a disagreement, we do not believe it’s reasonable for the AG to have that veto power.”

The bill, LD 1354, would amend the state’s Administrative Procedures Act, which governs how rules are drafted and enacted. That’s important because many laws approved by the Legislature are, in a way, incomplete. They paint in broad strokes, leaving the details to be hammered out in the rulemaking process.

Those rules carry all the weight of the underlying law, and currently must be approved by the attorney general’s office before they are finished.

Mills said Thursday that removing that requirement would open the state to needless lawsuits.

“It’s part of the checks and balances that any reasonable businessperson would employ before taking some action,” she said. “You would check with a lawyer. Is this defensible in a court of law? … Without this common sense legal review, the state is going to get sued, and in many instances the state would lose, and have to pay not only damages but legal fees for plaintiffs.”

A recent case in which a rule change caused controversy was when LePage sought to change eligibility requirements to prevent some immigrants, including many asylum seekers, from receiving state aid through the General Assistance program, which provides emergency cash to cover basic necessities such as shelter, heat and food.

Mills’ office said the changes were an unfunded mandate on local government, which administers the program, and violated the U.S. and Maine constitutions. Without her approval, the eligibility rule couldn’t be changed — though LePage strong-armed towns into compliance anyway by withholding funding for the program to municipalities that didn’t follow his new rule.

The conflict is the subject of a lawsuit to determine whether LePage had the authority to enforce the rule without following the Administrative Procedures Act.

The act empowers the governor to enact policies, subject to legal guidance from the attorney general. By attempting to remove Mills from the rulemaking process, LePage would consolidate authority within the bureaucracy of the executive branch.

That rubs Jim Tierney the wrong way.

A former Maine attorney general, Tierney is director of the National Attorneys General Program at Columbia Law School, where he is also an instructor. He said taking Mills, or any future attorney general, out of the equation would give the executive branch carte blanche to pass laws through rulemaking.

The attorney general’s oversight of rulemaking is “a powerful tool against a runaway bureaucracy,” Tierney said Friday. “That’s the whole purpose of [the Administrative Procedures Act], to rein in the executive branch in the day-to-day operation of government.”

Bennett said that while minor technical rules potentially could be enacted under the sole authority of the executive branch if LePage’s bill passes, major substantive rule changes still would require a public hearing and approval by the House and Senate.

“That’s important to note,” she said. “It would still go through the legislative process. It’s not an authority the executive branch would hold exclusively, to have these rules approved.”

The bill, sponsored by House Minority Leader Ken Fredette of Newport, has been printed and the House has ordered it sent to the State and Local Government Committee. It awaits action in the Senate.

Follow Mario Moretto on Twitter at @riocarmine.