Primary elections in Utah have wound down and now it’s on to the general election.
In the general election for attorney general, Derek Brown emerged as the Republican candidate after a three-way race. Rudy Bautista (Democratic), Andrew McCullough (Libertarian) and Michelle Quist (United Utah) all made their way onto the ballot via convention. Austin Hepworth is running as an unaffiliated candidate.
These candidates are vying to become the state’s lawyer and whoever is elected will likely weigh in when there are newsworthy legal issues. So, the Deseret News asked each of the candidates what they thought about two of the most talked about Supreme Court rulings: Chevron deference and the immunity of former President Donald Trump.
In addition to these rulings, candidates were asked about Trump’s guilty verdict handed down by a Manhattan jury as that issue was discussed during the Republican primary.
Here are their responses.
Utah AG candidates on Chevron ruling
Chevron deference was a legal doctrine that gave agencies discretion to interpret the law in cases where Congress was ambiguous or silent. It was overturned by the Supreme Court, which gives the power of interpretation back to the courts.
Derek Brown: When asked what he thinks about the ruling, Brown said, “I think it’s about 40 years overdue. That’s what I think. I think Chevron as a doctrine was unworkable from the moment it was passed.”
Brown was effusive about Chief Justice John Roberts’ majority opinion and said, “I love how he ended the case. He says that the true lesson is not that we are bound to respect Chevron’s startling development, but bound to inter it.” In other words, Brown said, Chevron was buried by the court because it was unworkable.
“Number one, it’s unworkable because it’s a continually shifting standard and it’s a standard based on who is in the White House,” said Brown as he paraphrased from the opinion. He pointed toward a matter dealing with broadband internet service where a rule was upheld under George W. Bush, but replaced under Barack Obama and then again replaced by Donald Trump and President Biden.
“What they’ve done is they have effectively stopped the whiplash and they said to Congress, ‘It’s time for you to do your job,’” said Brown, adding that conservatives were frustrated with Chevron from the start because it gave agencies powers they never believed they should have.
If elected, Brown said he would put together a Chevron working group to address federal overreach. He said he’s been working with members of the Utah Legislature to identify areas where the state can push back for the benefit of Utahs naming the power plant rule as a specific example.
Brown mentioned land issues, mineral extraction, use of roads and grazing as other areas where the state could push back. He spoke about the work of Louisiana Attorney General Liz Murrill where she won a case after pushing back on a rule that impacted dishwashers. Brown said there are a number of small areas like that in the state that he would look at addressing.
In addition to working with state lawmakers, Brown said he would collaborate with other attorneys general. “But as a state, I want us to lead out on issues involving lands and energy because those are really the key issues that we face here in the West.”
Michelle Quist: Quist said it’s not surprising the court overturned Chevron. “What is surprising is the grandstanding taking place that the Loper Bright case has solved all of our federal regulation problems. In fact, the Court has simply transferred power from the executive branch to the judicial branch.”
Saying it was ironic that conservatives praised Chevron in 1984 as a good response to “an overly active judiciary,” Quist added, “As soon as a few courts confirm new regulations they don’t like we’ll start hearing about activist judges again.”
“Chevron deference was used when a statute interpreting federal regulation is ambiguous — a court would defer to the reasonable interpretation provided by the agency,” said Quist. “Now, instead, the courts will decide whether the proposed regulation was intended by Congress or not using traditional methods of statutory interpretation — arguably what should have been happening all along.”
Quist said it’s clear Congress hasn’t done its job.
“Going forward, if Congress doesn’t make it clear in each particular statute that an agency does or does not have regulatory authority, then our judges will be the ones making law,” said Quist.
When asked about areas where the federal agencies may have overstepped, Quist quipped “light bulbs and shower water pressure.”
“In all seriousness, Americans feel overregulated by the little things and most federal agencies fail to make the connection between the importance of the regulation to the public’s general safety and well-being,” said Quist.
Quist also said Congress can’t be trusted to legislate better and Chevron will be harmful “if our health, environmental, food safety, and other agencies aren’t able to persuade courts to keep or adopt reasonable regulations that protect the food we eat, the air we breathe, the toys we play with, the cars we drive, the roads we travel on, and our land from the waste that corporations create.”
The bright side, Quist said, is there’s now an incentive to settle the safety of Americans’ daily lives.
Andrew McCullough: McCullough said he fights with administrative agencies all the time and doesn’t think it ought to be the case that “if the bureaucrats say one thing and you say the other, the bureaucrats are right.”
“I think that putting this on equal footing and making the government prove that their argument is correct and reasonable is a great thing,” said McCullough adding that he also thinks it’s good the Legislature will be compelled to write more specific laws.
McCullough said he’s not looking for opportunities to sue the federal government right now, but if he’s elected, he would look at where areas where the federal government has overstepped their bounds.
“I’m just as anxious to cut down on state regulation as federal,” said McCullough. “If this is purely a power struggle between bureaucrats and the feds and bureaucrats in the state as to which one of them gets to oppress us, I’m not interested.”
Rudy Bautista: “I’m very torn on it, because from one aspect of it, I do agree that the Legislature, when they enact laws, they need to be clear on what they want,” said Bautista. But he said he’s also concerned because now judges without the same expertise as administrative agencies will be given more discretion.
“It’s very troubling and I think, unfortunately, all it’s going to do is increase litigation and waste a lot of money and potentially put people’s safety at risk and environment at risk,” said Bautista.
Bautista said he was concerned that the current environmental regulations would be pushed aside and litigated. He said regulations to keep the air clean and prevent illness would be put in jeopardy — and expressed concern about offshore oil drilling.
While Bautista said he’s torn on this issue because he believes it’s important to use natural resources, he worries what will happen “if corporations are allowed to run amok.” He said he would hate to see oil companies have unchecked access to Utah public lands for drilling.
Bautista said there are no areas where he thinks federal agencies have overstepped and would consider litigation.
“Utah is a state in the United States of America,” said Bautista. “We’re not an independent sovereign. We’re not our own foreign country. We are the United States of America and we need to start acting that way.”
Austin Hepworth: “I think that the recent ruling overturning Chevron is correct,” said Hepworth “The courts should review statutory grants independently. It is an important part of the system of checks and balances.”
“A recent example of a federal agency taking an expansive interpretation of existing law is with the FTC passing a rule that bans noncompete agreements,” continued Hepworth. “The rule overturns years of contract law and the rights of the state to self-regulate, and was not a part of the FTC’s oversight prior to its rule. Another example includes when the federal government mandated that employers with more than 100 employees vaccinate all employees.
Trump immunity
Derek Brown: Brown said the Constitution doesn’t say anything specific about presidential immunity and that he thinks the arguments that came from either side of the oral argument were untenable.
“Both are extremes and neither is workable,” said Brown.” Because I think the president needs to have a level of immunity for actions with a nexus to his Article 2 powers.”
Brown said the president needs to have immunity for actions taken within their official scope of responsibility and he thinks that it’s good the court did that and kicked the specific interpretation of that down to the lower courts.
Something else Brown said he liked about the decision was how the Supreme Court justices took the personalities out of the decision and thought about the decision from a long-term perspective. “Ultimately, the court did what they often do, which is that they didn’t resolve the issue, but they created a standard that courts from here on out have to follow when they’re faced with these kinds of questions.”
“And that’s what American courts do,” continued Brown. “That’s what our judicial system is best at doing and I think they’ve done a good job of balancing the competing interests here and creating a policy that the lower court will follow.”
Michelle Quist: “Our presidents are now untouchable and can plan accordingly,” said Quist. “Like Justice Sonia Sotomayor, I fear for our democracy.”
“Our system isn’t set up to elect bad men who would even contemplate criminal activity in office. I’m constantly flabbergasted that so many Americans are OK electing leaders who are lying, cheating, con men who harm women,” said Quist. “Our elected leaders should be held to a higher standard, which is exactly why I am running for attorney general. No more scandal and gross partisanship. When you have scandal, all it does is undermine the public trust, and make government less effective.”
Andrew McCullough: McCullough said he thinks a lot of people are worried about the decision, but he doesn’t think the decision says that the president can do whatever he wants.
When reading the opinion, McCullough said he saw the instances where Sotomayor was pointing out where the president would be immune, but also saw Roberts challenging that. McCullough said Trump’s argument was much wider than what the Supreme Court gave him.
Rudy Bautista: “I’m a little bit torn because historically the presidents of the United States have had to do things that are in our national interest and defense of our country and sometimes they can’t tell us these things because they could threaten our safety,” said Bautista.
But Bautista said the idea that the president would have absolute immunity in every case of an official act is “nonsense.”
Austin Hepworth: “The Supreme Court’s ruling on Trump’s immunity went too far. Nearly every government position will have some level of immunity with it, but no position should have extensive immunity,” said Hepworth. “The president signs most laws and should be subject to the laws signed, just as the rest of us are subject to them. Government officials should be accountable to constitutional laws and to the people.”
Trump verdict
Derek Brown: “I believe that we have a long and very divisive year ahead of us, and unfortunately, the recent verdict in New York only threatens to exacerbate that. Both President Biden and President Trump are likely to be our parties’ respective nominees, and thus only a handful of Americans in a few swing states are likely to be the decision maker in who will be the next president of the United States,” said Brown. “I have spent my entire campaign outlining my priorities if I am Utah’s next attorney general. These include protecting the most vulnerable among us, protecting our children, securing the border, and pushing back against federal government overreach.”
Brown added that he will be committed to those ideals regardless of who the president will be.
Michelle Quist: “We can’t start picking and choosing which verdicts we’ll support and which ones we’ll question or the system itself will crumble,” said Quist. “As officers of the court, we have ethical obligations to uphold our systems of justice. And our system is strong, with built-in safeguards that are still in play, including for former President Trump.” Quist said the rule of law is the most important thing and not even the “political elite” are above it.
Andrew McCullough: As a criminal defense lawyer, McCullough said his immediate feeling “is always ‘don’t let the prosecution run over us,’” but also when he sees someone do something really wrong, he thinks there ought to be a punishment.
In general, McCullough said he’d like to see fewer criminal cases and fewer convictions. This specific case is complicated.
McCullough said on the one hand, Trump tends to not follow the rules, and on the other hand, he’s not convinced beyond a reasonable doubt. He said he’s not bothered by Trump getting his hand slapped.
Rudy Bautista: “The fact of the matter is he broke the law, the jury found (that), the prosecution met the burden of proofs and the jury convicted him,” said Bautista said adding he thought it was offensive “to come to the defense of a person who’s broken the law.”
Austin Hepworth: “From the evidence I have seen (which is not all), it appears that Trump did violate campaign finance laws, but it also appears possible that the law is not being equally enforced. I believe strongly that laws should be equally enforced against all who break them,” said Hepworth.