About a year ago, the U.S. Supreme Court temporarily halted implementation of the Environmental Protection Agency’s Clean Power Plan, and though the court didn’t know it at the time, this probably killed off the plan for good.
The 5–4 decision, delaying enforcement until lower courts reviewed legal challenges to the new regulations, was a decisive setback for President Obama’s signature environmental initiative, which used an “aggressive” interpretation of the EPA’s authority under the Clean Air Act in an effort to control greenhouse-gas emissions.
In September, some state attorney generals and power companies argued before the D.C. Circuit Court that the act gives the federal government too much power to enforce state laws. A decision in the case is expected within the next few months. But the outlook for the regulation is grim: Even if the court affirms the rule, President Trump has said he intends to repeal it, and his choice to run the EPA, Scott Pruitt, is one of the state AGs who challenged the plan in court. Environmentalists have already begun concluding that, “the rule will be shelved, replaced or rescinded for the near term.”
If and when the Clean Power Plan is cast aside, it will be a major victory for Patrick Morrisey, currently the attorney general of West Virginia, chairman of the Republican Attorney Generals Association, and a strong potential GOP option for 2018, when West Virginia’s Democratic senator, Joe Manchin, faces reelection.
A lot of state attorney generals opposed the plan, but it was Morrisey’s office that wrote the brief, and he was eager to lead the charge.
“The president’s power plan was such an absolute overreach, and it affects so many people’s lives,” Morrisey says, when asked about which suits in his tenure have affected people’s lives the most. “Coal matters. Energy resources matter. When you see the executive branch put a bulls-eye on your state, one of the poorest states in country, and you know people are going to lose their jobs, and it doesn’t come in a purposeful manner . . . it’s particularly callous, reckless, and illegal.”
Morrisey doesn’t look or sound like a figure primed to lead a revolution in West Virginia politics; given his résumé, one might have expected him to follow a path closer to Chris Christie’s in the Garden State. He grew up in Edison, N.J., and as a teenager he taught tennis in nearby Metuchen. He got his bachelor’s and juris doctor at Rutgers University, and even ran for Congress in New Jersey in 2000. (He finished fourth in the primary.)
But during his years working on the House Energy and Commerce Committee — serving as staff counsel on legislation covering bioterrorism and the creation of Medicare Part D, which subsidizes the cost of prescription drugs for seniors — Morrisey lived in Harper’s Ferry, W.Va., about sixty miles from Capitol Hill, and found himself increasingly enamored with his new home.
In 2012, Morrisey was active with the state GOP and tried to help the party recruit a candidate for attorney general, an office no Republican had occupied since 1933. That year the American Tort Reform Association called West Virginia a “judicial hellhole,” and placed a lot of blame at the feet of the state’s Democratic attorney general, Darrell McGraw, contending he ran “his office as if it were a private personal injury law firm and distributing litigation settlements to programs and organizations of his choosing, rather than the state and its taxpayers.” Morrissey was particularly irked that McGraw had refused to join other state attorney generals in challenging Obamacare. When no other Republican was willing to run, Morrisey jumped in himself.
McGraw had held the state attorney general’s office since 1992, but age, the electorate’s appetite for change, and its alienation from the Obama-dominated modern Democratic party caught up with him. Campaigning resolutely against Obamacare, Morrisey won in a year when Democrats carried every other statewide office.
It didn’t take long for Morrisey to establish himself as one of the state attorneys general most inclined to file suit against the federal government.
He joined a challenge to the Obama administration’s interpretation of the Gun Control Act of 1968 as prohibiting so-called straw purchases of a gun even when the true buyer could buy the gun lawfully. In 2014, the Supreme Court ruled 5–4 in favor of the administration.
In October of the same year, he filed a lawsuit against the Department of Health and Human Services, contending the department did not have the authority to suspend Obamacare’s insurance mandate and accusing President Obama of “cherry-picking which laws his Administration will enforce.” In July 2016, the D.C. circuit court ruled that West Virginia had not suffered an injury in fact and lacked standing.
Last year, he joined a suit against the Obama administration over its directive to school districts on accommodating transgender students’ access to bathrooms and locker rooms, contending the administration “conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment.” The Supreme Court is expected to hear oral arguments in that case in March.
Morrisey has had mixed success with these and other lawsuits — the Clean Power Plan suit, for example, was one of 14 cases he’s brought against the EPA — but his losses haven’t seemed to hurt his reputation much in West Virginia.
“We’ve had a good batting average because we’ve taken the time to do this the right way,” Morrisey says.
West Virginia voters seem pleased; in November, they reelected Morrisey 51 percent to 41 percent. During the campaign, Democrats tried to paint him as too cozy with big drug companies, pointing to his past work at the Washington law firm of King & Spalding, his lucrative work lobbying for a pharmaceutical industry trade group, and numerous donations to his campaign from drug companies, their law firms, and their PACs.
One reason this criticism didn’t work as well as Democrats hoped was Morrisey’s numerous lawsuits against pharmaceutical companies. In court, he has contended that the industry recklessly provided massive quantities of painkillers to small-town pharmacies and doctors, fueling the state’s severe opioid-addiction crisis. By January, his office had obtained more than $47 million in settlements from pharmaceutical companies to resolve the allegations. The settlement money will go to drug-abuse prevention and treatment programs.
“Our plan [for addressing opioid addiction] includes an aggressive education component,” Morrisey says. “You have to educate people at an early age.”
In January, Morrissey’s office won a fight to sue McKesson Corp., the nation’s largest wholesale drug distributor, in state court, contending the company failed to develop an adequate system to identify suspicious drug orders. The company shipped more than 100 million doses of painkillers such as hydrocodone and oxycodone to West Virginia —a state with fewer than 2 million people — in a five-year period.
His office isn’t just pursuing high-dollar settlements from the biggest fish, either. In December, he filed suit against Larry’s Drive-In Pharmacy in Madison, W.Va., alleging the pharmacy failed to identify suspicious prescriptions. The pharmacy dispensed nearly 10 million doses of prescription painkillers over eleven years — in a county of fewer than 25,000 people.
The other traditional attack against a Republican candidate is to paint him as a friend to the wealthy and powerful, helping them kick the little guy. But as attorney general, Morrisey’s gone toe-to-toe with some of the state’s biggest employers when he’s convinced they’re on the wrong side of the law.
Frontier Communications is the biggest Internet provider in the state, and when its customers claimed their connection was far slower than advertised, Morrisey’s office negotiated what a press release called “one of the largest consumer protection settlements in the state’s history,” as Frontier agreed to put an additional $150 million into infrastructure improvements throughout West Virginia while reducing monthly customer bills by $10 million.
Morrisey’s office also filed a lawsuit against the state’s largest residential landlord, Metro Property Management, alleging that the company violated the state’s consumer-protection law by charging tenants a non-refundable fee, in addition to the standard damage deposit, to prepare each residence for its next tenant.
One of Morrisey’s more recent targets is Mylan, the increasingly infamous maker of the EpiPen, a life-saving device used to treat severe allergic reactions. The company came under intense public criticism last year after reports that it had raised the base price of an EpiPen two-pack 600 percent since 2009. Republicans point out with relish that Mylan’s chief executive, Heather Bresch, is Manchin’s daughter. Bresch told a hostile House of Representatives committee that the price increase was “fair” and that the company only makes a profit of $100 per two-pack.
In September, Morrisey announced that his office is looking into whether Mylan violated antitrust laws or defrauded the state’s Medicaid program. In November, after the company announced it had reached a $465 million settlement with the federal government to resolve allegations that it had shortchanged the Medicaid system, Morrisey publicly denounced the proposed resolution as a “sweetheart deal” and “a losing proposition for taxpayers who fund Medicaid and the countless families who rely on EpiPen and are beholden to Mylan’s skyrocketing greed.” Strangely, after the company’s announcement, the federal government said it hadn’t signed on to any settlement, and as of January, the outgoing head of the Centers for Medicare and Medicaid Services, Andrew Slavit, denied the existence of an agreement.
It’s quite possible that Morrisey’s name will be taken in vain around the Manchin family dinner table more often in the coming years. For now, he is noncommittal about any potential 2018 run. But it doesn’t take too much to get him to analyze the difficult spot his potential Democratic foe is in.
“I have respect for Senator Manchin as a politician and a person,” Morrisey says. “He is a very talented politician who has been working hard to shift his positions, to move away from a position of a strong public endorsement of Hillary Clinton, who won less than 27 percent in this state. The national Democratic party’s values do not reflect West Virginia values, and it is an exceedingly difficult challenge to walk that line.”
Precisely because of his predicament, Manchin has quickly become one of the most fascinating Democrats to watch in Washington: Facing reelection in perhaps the most pro-Trump state in the nation, he must decide where to work with the new administration and where to oppose it. He voted to confirm Jeff Sessions as U.S. attorney general and applauded Trump’s executive order on the Keystone Pipeline, but joined fellow Democrats in a protest against Trump’s executive order on immigration and refugees at the Supreme Court last month and voted against Tom Price as HHS Secretary and Betsy DeVos as Education Secretary.
Over the next two years, it will be interesting to see if he takes a softer stance on Trump with a potential challenge from Morrisey lurking.
— Jim Geraghty is National Review’s senior political correspondent.
