Guv v. AG on health care suit: Who is legally right?

The governor and the attorney general are at loggerheads over who has the authority to determine whether to join a lawsuit filed by other states challenging the constitutionality of recently signed ObamaCare.

Republican Gov. Jim Gibbons is telling Democratic Attorney General Catherine Cortez Masto to file. She is saying, not so fast.

How can one elected official order another independently elected official to act?

“If this office institutes litigation against the Federal Government, that lawsuit will have a solid basis in law and will be able to withstand the scrutiny of a federal court,” Masto wrote to Gibbons. “Anything less would be a disservice to the citizens of Nevada and would be a waste of taxpayer dollars.”

Let’s get down to basics.

The Nevada Constitution establishes: “Supreme executive power vested in governor.  The supreme executive power of this State, shall be vested in a Chief Magistrate who shall be Governor of the State of Nevada.”

As for the attorney general the Constitution states: “The Secretary of State, State Treasurer, State Controller, Attorney General, and Superintendent of public instruction shall perform such other duties as may be prescribed by law.”

For her part, Masto points to NRS 228.110 : “The Attorney General and the duly appointed deputies of the Attorney General shall be the legal advisers on all state matters arising in the Executive Department of the State Government.”

Key word: “advisers.”

For his part, Gibbons points to NRS 228.170: “Whenever the Governor directs or when, in the opinion of the Attorney General, to protect and secure the interest of the State it is necessary that a suit be commenced or defended in any federal or state court, the Attorney General shall commence the action or make the defense.”

Key phrase: “Whenever the Governor directs” and “the Attorney General shall commence.”

Masto cites Nevada’s Rule of Civil Procedure 11, promulgated by the state Supreme Court, which bars attorneys from filing frivolous suits.

This could wind up in front of that Supreme Court. What will prevail? Constitution, law or court rules?

No, politics.