Why One GOP Official Says His Fellow AGs Are ‘Playing with Radioactivity’

I n today’s Republican Party, there is no status more prized than that of rock-ribbed conservative. What this means, precisely, remains the subject of hot debate. The prevailing definition — the one embraced by a plurality if not a majority of the party at the moment — seems to be something approximating “supports and defends President Trump in all of his endeavors.” One-hundred and twenty-six GOP congressmen met this particular definition by filing an amicus brief urging the Supreme Court to accept the lawsuit brought by Texas attorney general Ken Paxton to overturn the election results in four swing states: Georgia, Pennsylvania, Michigan, and Wisconsin. Seventeen other state attorneys general also backed the effort, one our Andy McCarthy called “frivolous,” “a lamebrain idea,” and a step toward “the brink.”

One of the few Republican attorneys general trying to pull the GOP away from the brink, however, is Ohio attorney general Dave Yost. He filed his own brief in the Texas case, which the Supreme Court rejected on December 11. Like Paxton, Yost harbors serious concerns about the meddling in this year’s election processes, most egregiously in Pennsylvania, where, Yost noted in an interview with National Review, the state’s Supreme Court “alter[ed] the express terms of a statute” by mandating that the state accept mail-in ballots up to three days after November 3. He attributes much of the “chaos” in this year’s election to executive and judicial overreach and calls it “important” to answer the questions many Americans have about the election’s integrity. That’s why he urged the Court to weigh in on “the extent of the power that the Electors Clause confers on state legislatures and withholds from other actors” in his brief.

But in the now-defunct Texas lawsuit, Paxton and his cohort requested as remedies that the election results in the four states in question be ignored and that the GOP-controlled legislatures in those states be ordered by the Court to handpick which electors to send to the meeting of the Electoral College. Yost himself believes these requests were “shocking,” “incredibly dangerous,” and an example of “not just playing with fire, but playing with radioactivity.”

Radioactive to America’s constitutional order as well as to the philosophical and practical aims of the conservative movement, Yost argues. “If the Supreme Court were to somehow accept that remedy, federalism is dead,” he told NR. “New York could sue Ohio and say, ‘Supreme Court, we want you to order the legislature of a sovereign state to enact gun-control laws because it’s impacting every New Yorker who travels to Ohio.’ . . . We could have California suing over Ohio’s environmental laws or our abortion laws.”

Disciples of a certain ascendant instinct on the right these days might chafe at Yost’s critique and deem him a meek procedural conservative who lacks the conviction to fight political and cultural headwinds that conservatives face. Yet it’s a mistake to attribute to Yost an unwillingness to confront the Left. He has wholeheartedly defended Ohio’s “heartbeat” abortion ban and signed on to an amicus brief in Bostock v. Clayton County arguing that Title VII of the Civil Rights Act does not prohibit discrimination on the basis of sexual orientation or gender identity.

He also would be quick to argue he’s not the one who has failed the president and his voters. Unprompted, the attorney general complained during the interview about the Trump legal team’s incompetence, pointing out that while he and his office were kept busy by a flurry of pre-election litigation related to drop boxes and other procedures all spring and summer, the president’s lawyers were mostly inactive.

Among Yost’s complaints was the GOP’s failure to be proactive in ensuring that social-distancing regulations did not impede its election observers. “We’ve had COVID all year. . . . Why wouldn’t the president’s team have been in court this summer asking for dec actions?” he asked, referring to court judgments that determine the rights of parties without a remedy or damages ordered. “Instead, the president’s team had to scurry, draw up the lawsuit, do the research, and try to rush into court,” he said.

This isn’t the first time the attorney general has found himself on what some might mistakenly deem the squishy side of the GOP. In California v. Texas, the most recent of many Affordable Care Act (ACA) cases, Yost also opposed the position of both the state of Texas and the Trump administration, maintaining that to strike down the entire law along with the individual mandate would be a grave mistake. In briefs filed with the Fifth Circuit Court of Appeals and the Supreme Court, Yost argued that by lowering the penalty for not adhering to the individual mandate to $0 but declining to touch the rest of the legislation, Congress had demonstrated that the mandate was not essential to the rest of the ACA and shown that it did not intend to get rid of the entire act. Striking down the entire statute because of one infirmity may please conservative activists eager to rid the country of the ACA, but Yost argues that such a ruling would be a step backward for the conservative legal project, which has long pushed back against judicial activism. Facially, Yost’s position may have appeared to be to the left of Texas’s, but in reality it was the latter’s that would have “upend[ed] our constitutional order,” Yost said.

Asked about the future of the party and conservative movement, Yost placed an emphasis on keeping the Trump coalition together and acknowledged that too many Americans have been left behind, both economically and culturally. But he also warned, “There’s a party apparatus, there are professionals out there who have no interest in federalism, no interest in the rule of law, who are not real conservatives, but manipulate people and their sense that they’re being ignored, to make themselves rich.”

As for how the party can substantively address the problems of this disenchanted class, Yost suggested that the animating principles of the GOP should be to support maximizing individual freedom and well-being, and to oppose the “aggregation of power” by the government, big business, and “the mob.”

Whether Yost’s positions on the ACA and especially the Texas lawsuit could come back to bite him in 2022 when he stands for reelection seems not to matter much to him. While he believes he deserves another term, he also seems at peace with the alternative: “I do work for the people; the people don’t have to have a reason to want to encourage me to go and find another opportunity. I’ll stand and make my case, and they’ll make their decision. That’s the way it works in America, and I’m okay with that.”

It has been a fundamental objective of this publication from its inception onward to use the Republican Party as a vehicle for moving the country to the right. If you had told William F. Buckley Jr. that Republican candidates for office would bend over backwards to claim the mantle of conservatism back in 1955, when the GOP was dominated by the likes of Dwight Eisenhower and Nelson Rockefeller, he would have been overjoyed. That conservatism has been reduced in some quarters to a consequentialist personality cult fixated on “fighting” but never stopping to ask “what for?” would undoubtedly leave him dismayed. In a properly functioning conservative party — one that understood conservatism as it was meant by Buckley — it would not be Sidney Powell’s vision of the country for which Republicans would be motivated to fight, but rather Dave Yost’s.