One-On-One with Attorney General Jonathan Skrmetti

Nearly two years ago, shortly after a panel of Tennessee Supreme Court Judges appointed Jonathan Skrmetti as Attorney General, we sat down with the then-green AG as he embarked on establishing himself in his new position. A lot has happened since then, but Skrmetti’s commitment to being a public-facing official has held fast. 

Last week, we caught up with the AG once again for an update on his affairs, the state of his office, and the particulars of some of the most important cases occupying his team. After a cordial greeting, General Skrmetti was ready to jump right in.

Afternoon, General Skrmetti. Thanks for joining me. There are a lot of things we can talk about, but let’s start with an overview. How are things going in the AG’s office?

The overview is pretty straightforward. We're really busy here. The Strategic Litigation Unit is up and running, and we've been really active pushing back against federal overreach. The consumer protection team is working incredibly hard on a number of fronts. And, you know, we've got constitutional litigation against the state coming and we're tied up with some pretty big cases there. We're waiting on the US Supreme Court in the L.W. case. The ACLU and the US Department of Justice have asked the court to take that case up. That's the transgender pediatric law that was passed in the session before this past one.

I wasn't going to go into the transgender stuff, but it sounds like you have a little bit of an update on that. Do you want to dive into the L.W. case? 

So the L.W. case is the prohibition on juveniles getting hormone treatments, puberty blockers, or surgeries for gender transition purposes. There have been a number of these laws that were tested in court across the country. Over and over, the federal courts had held that states could not pass these laws. We were the first state to win. We filed an emergency stay motion with the Sixth Circuit and got an opinion saying states do have the authority to regulate, limit, and prohibit pediatric transgender treatments. We got an even better opinion from Chief Judge Sutton when they went back and heard the case more thoroughly.

If this case continues through the court system, do you think that it could set a new precedent?

If the US Supreme Court takes this case, it's going to be the leading case bringing clarity to how the Constitution applies in gender identity cases. There will no doubt still be questions to be answered after that, but there's a real gap there. The Bostock case is pretty narrow and deals with sex discrimination in the employment context, and explicitly excluded a lot of other considerations. There's still open questions about how the equal protection clause of the Constitution might apply. I don't know that the Supreme Court will take this, but if they don't take this case, they have to answer some of these big questions. Hopefully soon, because there's a lot of litigation going on that would be resolved with more clarity from the court. 

Speaking of setting a precedent, I don't know exactly where everything stands with some of the abortion-related cases, but I remember the federal government withholding family planning funds. Is that case potentially something that could clarify the law around federal interference? 

So, that case is really about the Spending Clause, which is the authority that the Constitution gives Congress to attach strings to money that it spends. In that particular case, Tennessee had been getting a grant for decades to administer these great prenatal programs to help mothers-to-be. Just a couple of years ago, the Department of Health and Human Services said there's no other entity in Tennessee, apart from the Department of Health, that can fully and adequately administer these grants. And then, almost immediately after that, they imposed this additional abortion-related requirement via the agency and said, “Tennessee, since you will not comply with these abortion provisions, we're going to give the money that we were giving you—and I think it was $7 million or so a year—to Planned Parenthood.” 

Congress set this money aside to help mothers-to-be, it didn't say anything about abortion. It didn't give the agency the authority to condition the money on abortion policy. So this is a federal agency trying to rewrite the conditions that Congress created for this grant. That's not how our constitutional system works, and that's really the crux of almost all of our litigation against the federal government. 

We have a separation of powers system. The legislature gets to decide what money gets appropriated. It also gets to pass the laws and then the executive branch executes the laws. But what we've seen are federal agencies essentially trying to rewrite the statutes that Congress passes to account for their own policy preferences. That is far removed from the representative democracy that America is supposed to be. The law should stop that, and we're bringing cases so that the law will stop that.

Are there any updates since you did your press conference announcing Tennessee was suing Biden’s federal Department of Education over its redefinition of “sex” to include “gender identity” in Title IX?

We have a hearing on our preliminary injunction request coming up in June, and so we should know in June whether or not these rules will be going into effect on August 1st. Obviously, we want to get clarity on that quickly, because if the rules aren't going into effect, people don't need to be spinning their wheels trying to create new policies to comply with them. If they are going to go into effect, then the state needs to make decisions about how it's going to react to that going forward. So we need clarity, and we need it soon. And we've got a judge that I think recognizes the need for clarity and has a pretty expedited schedule for us.

While the suit is still pending, there’s been a little pushback after you encouraged schools in Tennessee to adhere to all current laws. Would you like to address that as well?

It's kind of disheartening that this is a point of contention. I feel very strongly that people shouldn't be able to pick and choose which laws they follow. That's not to say that schools don't have choices to make, it's just we can't ignore the law. We can't pretend it doesn't exist. I think there are profound legal problems with it, but at the end of the day, we have to work out our legal problems through the court system. 

The only realistic alternative is to just abandon the legal system altogether, and I think that's a pretty bad idea. In a constitutional system with the rule of law, we need to go to the courts. I recognize this is extraordinarily unpopular in many circles and is a huge overreach by the federal government, but I was a little disheartened that people immediately started talking about non-compliance when, ultimately, it's largely a spending policy issue anyway. It's not really a matter of not complying, it's a matter of, “Are you going to take this federal money or not?” But, we have insufficient law and order in America right now, and I don't think any responsible political actors need to be further encouraging people to ignore the law. They need the legal system to work better, not work less.

The other thing that I want to touch on is state sovereignty. You’re known as an AG who defends state’s rights, but your office did come out with an opinion against one of the state sovereignty bills that included nullification during this year’s General Assembly saying it was constitutionally infirm. 

They're going to do a summer study on state sovereignty and there are plenty of legislators coming at it from different angles. Do you have any idea of what would work, what you could defend as far as defending some of these state sovereignty pieces of legislation coming through or trying to come through our state legislature?

We have a dual sovereignty system. Our Constitution and our state constitution both derive their authority from the people, and the people have decided that some of the power will go to the federal government, some will go to the state government, and some of the power will remain outside the hands of the government altogether. We have a system of checks and balances designed to maintain that, though it does not always work as well as it should. But through the litigation that my office, other offices across the country, private individuals, and NGOs are bringing in, we're trying to reinforce those checks and balances in a way that ensures that our legal system recognizes the role of the states, which is a fundamental part of our constitutional order. 

Nullification is something that's been kicked around for at least a couple hundred years. When the Jackson administration was dealing with it, President Jackson said, in no uncertain terms, nullification is not consistent with our constitutional system. It's kind of like the conversation we just had about picking and choosing which laws to follow. Federal authority is limited, but to the extent that it is legitimate, it is superior to state law. It’s the Supremacy Clause in the Constitution that says if federal law and state law bump into each other, federal law wins.

I think the legal system is built around a constitutional structure that recognizes the role of the states and the limited role of the federal government, and the best thing to do to preserve that is to litigate aggressively to keep the federal government in its lane. You can pass a law that says something more robust about the states nullifying federal law, but the Supremacy Clause of the US Constitution would immediately invalidate that if it ever got put to the test in court. We can’t make up extra constitutional checks on the government. We have to work within the system that we have, and we have to make that system work.

When you look at how many lawsuits are working their way through the courts, the process is very slow. People are desperate at this point.

Yeah, it's so frustrating. People get really distraught at the fact that it takes a while to get resolution on this stuff. That's just the way it works. We try to get injunctions quickly, that way at least they're not under the burden of the illegal rules during the pendency of the case. But yeah, the system is slow. It's deliberately slow. Our legislative process is also deliberately slow. The idea is that you don't want a fast government because a fast government is much easier to turn into a tyrannical government. The slower, more deliberative approach to governance is a choice that was made at the founding to preserve our liberties in the long run.

Now, I haven't followed it, so excuse my ignorance, but I did want to ask about the Blackrock lawsuit. 

We filed a consumer protection suit saying, “You can't advertise to your customers that you will invest in a way to maximize return on investment and at the same time pledge to use every dollar under management to advance environmental goals.” One of those has to be a misrepresentation that constitutes a consumer protection violation. You can't say both and be honest about both of them. So, that litigation is proceeding and I think it's really important that we hold companies accountable. There's a huge concentration of power in a very small number of corporations these days, and the same concerns about concentration of power in government apply to the corporate world. 

If you've got a company that is able to effectively make policy without the checks and balances that apply to government, that's a really dangerous situation. We have laws to ensure that consumers are treated fairly and honestly, and we need to enforce them especially aggressively when dealing with really powerful entities.

I always appreciate you giving us some of your time. Do you have any more anecdotes to add before we wrap things up?

Our success is all because of the staff here. Lacey Mase, my Chief Deputy, Matt Rice, my Solicitor General, and Whitney Hermandorfer, who is running the [Strategic Litigation] Unit, are unbelievably good and we have some great people working under them. We just won the sex offender registry lawsuit. That was a tough, tough case and it all came down to extraordinarily good lawyering by one of our attorneys in the Solicitor General's Office. So people come here to work and to intern because they know they're going to be exposed to just exceptionally good lawyering…. There are tons of cases I would like to do that I can't do because we just don't have the resources. But even so, I think we're as busy as anybody these days.