Our conversation with Josh Shapiro [rebroadcast]

We're taking a break this week to recover from the midterms. In the meantime, enjoy a rebroadcast of our conversation with Pennsylvania's Attorney General, and now Governor-Elect, Josh Shapiro.

We talked with Shapiro back in 2018, at the height of efforts by state attorneys general to block actions from the Trump administration on issues from immigration to opioids. We discuss those efforts in this conversation and the role that Shapiro sees states playing in American democracy — a new meaning to the term "states rights."

Looking back, you can hear some early seeds of the themes that would emerge during Shapiro's gubernatorial campaign, particularly around his desire to fight for the people of Pennsylvania and not be afraid to get political when the circumstances demanded.

We'll be back next week with a new episode featuring New York Times columnist Jamelle Bouie on majoritarianism and counter-majoritarianism in American democracy.

‍Michael Berkman
From the McCourtney Institute for Democracy on the campus of Penn State University, I'm Michael Berkman.

Chris Beem
And I'm Chris Beem. And this is Democracy Works.

Michael Berkman
Chris, today we have a special guest, Josh Shapiro, the Attorney General for the Commonwealth of Pennsylvania was in State College last weekend, and we got a chance to sit down and talk with him about federalism and being Attorney General.

Chris Beem
Right. So, you know, I think most of our listeners will will recognize that, because Josh Shapiro has been in the news a lot lately, he brought forward the grand jury report on sexual abuse among priests in the Catholic Church. And this was an incredibly important moment, it led to his communication with the Pope, and a number of other states bringing similar charges. And he got interviewed by the New York Times, and yet he's still willing to talk to us. But the point is, that, that he's that we, you know, this is all incredibly interesting and important, but it's not our subject. And it's not why we wanted to talk to him, we want to talk to him about federalism. Right. And so the the the tag, the important role that state's attorney general's attorneys general play, I always get that wrong, is to act on the part of states to constrain and act as a check on federal power,

Michael Berkman
Like so much else that we talk about this goes back to Madison in the Federalist Papers and of happy memory, right? Well, I just taught them last week, so they are really in my memory, and in particular, Federalist 51, where Madison talks about, quote, the double security that arises to the rights of the people, the government's will control each other, at the same time, that each will be controlled by itself, right? Yeah. And like so much else. In the design of the Constitution. The intent here is to put protections for the people by limiting government power. And in this case, it's that it's that we have the state governments that have certain powers that are not under the federal government. They are there they are independent sovereign.

Chris Beem
Right. So you and you is since we're doing this AP class, we might as well also mention that the 10th Amendment to the Constitution says that all rights not articulated the federal government belongs to the state.

Michael Berkman
Right. And what we will talk to the Attorney General about and our lawsuits that he's involved in against federal government actions of different types of which there have been many high profile since the Trump administration in particular, but this predates the Trump administration. This is not something just about that. You know, if you go back to think about how did Ted Cruz become Ted Cruz, Ted Cruz was the Solicitor General in Texas, working with an attorney general by the name of Greg Abbott, who took the lead on many lawsuits against the Obama administration having to do with a range of issues including the Affordable Care Act, abortion rights, and just all kinds of things where they would bring suit against these acts, and they would get other case other states involved. They would submit amicus briefs to the court, Ted Cruz testified multiple times not testified but was before the Supreme Court multiple times arguing some of these cases. This is something that happens throughout different administrations, but it is very much a partisan kind of issue. Right? Not exclusively, but very much a partisan kind of issue, where Attorney General's use their ability to bring bring suits to challenge what the federal government is doing within the Trump administration. I think the most high profile that many people knew about was how the state of Washington and I believe Pennsylvania was involved in this to were able to stop the initial executive order prohibiting immigration from certain countries.

Chris Beem
So we were able to get just a few moments of the Attorney General's time he happened to be in State College, and he was kind enough to spend some time with Jenna. So it's a little different recording. He's not in studio, but we we just still jumped on. I was so we felt like it was such a huge opportunity.

Michael Berkman
Well, let's go to Jenna and the Attorney General. Absolutely.

Jenna Spinelle
This is Jenna Spinelle from the McCourtney Institute for Democracy here today with Pennsylvania Attorney General Josh Shapiro. Josh, thanks for joining us today.

Josh Shapiro
Great to be with you.

Jenna Spinelle
So we are excited to talk with you about federalism and some of the the action that you've taken on behalf of the Commonwealth of Pennsylvania in some of the what's been happening nationally federally kind of working just on the first two pages of Google I've seen you've been involved with federal, you know, seeing you know, the travel ban that I immigration, contraception more recently something against Betsy DeVos. And for profit colleges. So when you came into office last January, did you think that you would be this active on the on the federal level and taking on these cases,

Josh Shapiro
I've been pretty open about my role in this commonwealth and how I saw the work that I had to do as Attorney General playing out for people every day, I said, when I was sworn in on January 17 2017, that if anybody was going to try to mess with the Pennsylvania and they were going to have to come through me whether that's a drug dealer on the street corner, some big multinational corporation that's taken advantage of consumers or Pennsylvanians. Or even if it's the President of the United States doing something to undermine the rights and interests of the Commonwealth, they'd have to go through me and so I view the Constitution, quite literally as giving an through the 10th Amendment, the state's broad authority. You know, states rights is not necessarily something that progressives have talked about, or celebrated over the years for good reason. But it is something that I've always believed in. It's one of the reasons why I've worked so hard to hold state office. And one of the reasons why I think attorneys general right now are more important than ever before. So the bottom line is, if the President or anyone on in the federal system is doing something to undermine our rights, I'm going to step up and take action. That's exactly what we've done. And that's what the people of Pennsylvania pay me to do is to protect their interests and their rights. And that's what we're all about.

Jenna Spinelle
So tell me how one of these students get started. We hear about it, as you know, 15 states are speaking out against this or that, but what does that process actually look like?

Josh Shapiro
The analysis is really simple. Does the action comport with the rule of law period? You know, there's a lot that President Trump in the federal government do that I don't like. But I'm not some congressman who just a pines every day about what I like and what I don't like, I have a very specific role, which is to focus on making sure the rule of law is being upheld. So I put aside what I agree or disagree with and focus on the law, and where I see the administration doing something that is undermining the rule of law and thus the rights of Pennsylvanians, then I plan to take legal action. Now, once we determine that legal action is warranted, we try to figure out what's the best legal action, where is it best to file that action. And oftentimes, my fellow attorneys general will want to weigh in or want to engage or want to be a part of it. And so we make a determination as to whether or not Pennsylvania should be the lead state. For example, when the President decided one morning when he woke up that he didn't think women in this country should have access to contraception anymore. I thought that he was not only wrong, more importantly, what he was doing was unlawful. And I announced to my colleagues, I was going to file suit and 19 Attorneys General lined up with me, we filed an action in the Eastern District of Pennsylvania. And we not only won an injunction to protect Pennsylvania, when we want injunction protecting women all across this country. So sometimes it's taking the initiative and saying, you know, we're filing here who's with me, other times, there's strategic reasons why we want to file in a court somewhere else, maybe the issue is more pronounced in that state, we're in that community. And so I'll coordinate with my colleagues. But rest assured what we are not doing is just organizing opposition to the President for the sake of opposition, what we are doing is organizing ourselves around the rule of law. And where that is being undermined, we're stepping up and we're trying to make a difference in protecting the people within our respective states.

Jenna Spinelle
And so for every one of these actions that you kind of sign on to do give us a sense of of how many you turned down, or kind of what what some of those those factors are?

Josh Shapiro
Great question. We've been involved in either filing a suit or joining a suit, I think 14 or 15 times in my first year and a half in office. I should point out we've never lost. So I'm very careful about what we engage in on behalf of the people of Pennsylvania. And when you have the rule of law as your sort of benchmark as your foundation, it's pretty clear whether it's being adhered to or not. Some of my colleagues and other states have filed 40 or 50 actions. So I'm a little careful. I think it's again, not my job to be political about this. It's not my job just to weigh in, where I differ from the President. It's my job to weigh in where the rule of law is being threatened.

Jenna Spinelle
And what's what's the timeline? I mean, do you do you have a chance to talk to people in the in the Commonwealth and get a sense of you know, is this something that would would have constituents support?

Josh Shapiro
I do my job as Attorney General maybe a little bit different than my predecessors. I don't spend a whole lot of time behind the desk. I don't spend a whole lot of time just sitting in Harrisburg. I spent the majority of my week traveling around to different places, listening to people, meeting constituents. I still do my own food shopping where I learned a lot when you're going up and down the the aisles and and the reality is I think I just have a pretty good feel for where the people have penciled in We are and I have a good feel for what their rights are, what their legal safeguards are, and where they're being undermined, we're going to step up and make a difference. Now, look, not everybody's going to agree with you all the time. And so I don't, you know, pull test these things, I don't try to figure out if it's popular or not, but I try to do is what's right, and what adheres to the rule of law. And I think if you stick to that, then at the end of the day, you know, once sort of public opinion, or the public opinion at that particular moment becomes less important. It really needs to be focused on the rule of law.

Jenna Spinelle
Going back to President Obama, there was a lot of Attorney General on the right, who kind of filed these these actions against him. And now we're seeing kind of the opposite happened with with Trump in office. Do you think this this leads at all to the the polarization that we're seeing in the country or the the notion that it's it's hard for the government to really get anything done? Because all of these things that are trying to move forward keep getting blocked? At these these various junctures? Actually,

Josh Shapiro
I would just maybe respectfully differ from your the way you frame the question, actually, probably about 75% of what I do on the federalism side is totally bipartisan. The media doesn't always report it right. So when you get together with your Republican colleagues, and do something so for example, I, I got together my Republican colleagues, even challenging the FCC, on something involving robo calls, right? Not a ton of people wrote about that maybe it's not as sexy or vintage and interesting of an issue. But it's very important to people, and it's totally bipartisan. So the vast majority of actions we take are really bipartisan. And I think actually attorneys general, unlike a member of Congress, where it is so polarized, and people kind of go into their political clubs, we tend to work really well together.

Jenna Spinelle
Pennsylvania certainly has its own share of problems in the state. I've heard you talk a lot about opioids, for example. So how do you balance kind of tending to the needs of Pennsylvania here and in the Commonwealth versus, you know, getting involved in some of these larger federal matters?

Josh Shapiro
Well, when I get involved in the larger federal matters, it's to protect the people of Pennsylvania. When I try to, you know, when I when I file a lawsuit, go back to the example I used before, when I file a lawsuit, to protect access to contraception, yes, I'm suing the president united states, but women in Pennsylvania benefit from that. The people of Pennsylvania benefit from that. And so, to me, you know, whether I'm fighting in a state court, or whether I'm fighting in federal court somewhere, at the end of the day, I'm fighting for the same people, it's just the matter of where you go, in order to best protect their interest.

Jenna Spinelle
So one of the things that we've we've kind of heard from from President Trump is that  the Office of Attorney General should be kind of trending more toward toward being a political office, do you? Do you share that view? Or kind of what what are your your thoughts there about how political the office should be?

Josh Shapiro
Look, I mean, I think we're above politics. I'm a proud Democrat, I ran as a Democrat, I make no bones about what party I came from, and the progressive leanings that I have. The people of Pennsylvania knew that when they elected me. But when I do my job every day, we do check politics at the door. And I think we are about politics. And I think if you look at our track record, we've held Democrats accountable. We've held Republicans accountable, we do our job in a way that I think the people of Pennsylvania can be proud that they're getting a justice system. That is fair, I have Democrats and Republicans who work for me, I'm proud of the fact that we have the most diverse staff in the history of Pennsylvania, not just based on what people look like, or, for example, we have more women in positions of leadership than men, but also because we have different political views that around the table. When I walk in that door, in the Attorney General's Office, we decide whether to file a suit or bring charges or whatever the case may be, we do so without fear or favor.

Jenna Spinelle
Yeah, so So we've seen President Trump also kind of taking actions indicate that he doesn't respect the Justice Department and some of the processes that it follows. From from where you sit, how does that make you feel when you kind of see this, this playing out?

Josh Shapiro
I think the President's conduct and attacking law enforcement attacking the professionals of the Department of Justice is really abhorrent, and it undermines our justice system, it undermines the rule of law. And it it seeks to undermine our institutions. Now, I think what is clear, over the last year and a half of the President's term is that our institutions are actually pretty strong. And that the people are the ones who make up those institutions, and they're not willing to be bullied by the President in the way that he seeks to bully them. I can tell you that I work very closely with senior officials at the Justice Department, including rod Rosenstein, who has been in the news recently. These are professional people and whether we agree or disagree on a, you know, our philosophical viewpoint on a particular issue has no bearing on the work we do together. You know, I stood with them on an effort to hold pharmaceutical companies accountable to deal with the opioid epidemic. We're working together on on a number of fronts that I think are important. And I think it's important for the people of Pennsylvania and all across this country to know that, notwithstanding the President's white hot rhetoric and his ridiculous tweets, the professionals at the Justice Department, along with state attorneys general work really well together. And it shows the strength of law enforcement in this country.

Jenna Spinelle
So you mentioned the phrase that the rule of law several times, and I think that's one of the terms that we kind of hear thrown around a lot up from, you know, people in politics or even, you know, media pundits, etc. What what does that term mean to you, and you find that the it's there's kind of a shared definition across your attorney general, colleagues,

Josh Shapiro
It's the very foundation of of everything I do of every decision I make. And it helps you be above politics, it helps you be above the sort of daily grind of issues where the left goes to one place, and the right goes to another place. That's not my job as Attorney General, my job is to understand the law to apply the facts and the evidence as we have it, whether it's a criminal case or a civil case, and then make a decision in the best interest of the people of Pennsylvania. And so it really is, at the heart of everything I do now, do I think the term has been polluted by some of these pundits and talking heads in Washington and some of these, you know, do nothing, you know, politicians. Yeah, of course it has. And that's unfair. But at the end of the day, that, you know, I see our institutions within the legal community within law enforcement holding up, notwithstanding the withering attacks on them done in this, you know, really wrong headed way and, and in a way that, you know, I think perverts the real meaning of the rule of law.

Jenna Spinelle
So that's what asked about something you said on Twitter yesterday, you said federalism equals the soar to advance rights and the shield to defend against federal overreach. That's where AGS come in. Can you expand on that a little bit?

Josh Shapiro
Yeah, absolutely. Look at the 10th amendment. And federalism makes it clear that states have a real role to play in our democracy. And I believe that if the federal government is making an unwarranted overreach into our state business or to take away the the rights of Pennsylvanians, then I'm going to be a shield to guard against that, at the same time, throughout history, we've seen states be the sword to advance rights. Now, we've also seen states be the sword to advance some things that undermine people's rights, certainly, and that that was what I was alluding to earlier in a discussion about states rights, there's a negative to that as well in our history. But if you look, for example, at marriage equality, so much of that emerge from the states and counties like mine, that I used to represent Montgomery County, where we went and issued marriage licenses to same sex couples, and that ultimately led to movement at the federal level. So, you know, Justice Brandeis spoke so eloquently about states being the laboratories of democracy. And in an opinion, you know, quite some time ago, but that I think holds true today that states need to be a shield from unwarranted federal overreach and a sword to advance the rights of the people of their respective states.

Jenna Spinelle
All right, so we have a few minutes left here, we always end every episode of our podcast, the McCourtney Institute for Democracy conducts a public opinion poll called the mood of the nation poll. It's an open ended poll, people can respond in their own words. And so we have four questions that we always ask in that poll. I'm gonna ask you those four questions. Well, think of this cut out kind of like, like a lightning round. Okay. So your best tweet or the responses, perhaps I'm gonna

Josh Shapiro
Say the harm for 280 characters now? Yeah.

Jenna Spinelle
So thinking specifically about American politics, what makes you angry?

Josh Shapiro
Polarization, hypocrisy, dishonesty, I think we need to do better. And that's on both sides of the aisle, to be honest with you. And I think that the people of this country are better than some of our elected representatives right now. And we need to get back to decency and honesty. And as I've talked about here today, the rule of law, grounding the work that we do, we can have honest disagreements about health care, immigration policy, or what have you. We've had honest disagreements for hundreds of years in this country. That's the way it's supposed to work. But what we can't have is the type of hypocrisy and dishonesty and division that define our politics today.

Jenna Spinelle
And what makes you proud?

Josh Shapiro
The people, I mean, one of the things that's so extraordinary about this job is I get to go to work for the people every single day and I put people before the powerful whether it's, you know, exposing the type of child abuse and institutional cover up within the Catholic church that we recently uncovered. Whether it's holding some multinational corporation accountable for when they scam Pennsylvanians or Americans. I'm really proud of the fact that I get to help the people every day and through that I get a direct connect to them. I get to see what's on their mind in a way that Maybe others can't and be their voices, the peoples AG. And they really inspire me and to see people not only engaged in issues, but engaged right now in trying to be the defenders of our democracy and the defenders of our progress, you know, by by getting engaged in the selection. It's really inspiring.

Jenna Spinelle
To follow up on that, do you do you hear from people who say, Oh, I wish you would take on this or that or you know, something that that's happening?

Josh Shapiro
Every day someone has an idea on who we should sue or who we should investigate or even my wife, she's, she has ideas as well. But obviously, we focus on the evidence and you know, where it's appropriate to go forward. But of course, no and, and I love that feedback. And I'm very accessible, whether it's through Twitter, or Facebook, where you can follow me at Josh Shapiro, PA, or, you know, we're just engaging me out in the community. I like to be connected to people and I love their ideas, and a lot of times actually, their ideas to come to fruition in one form or fashion.

Jenna Spinelle
Tomorrow, what are the next poll questions? What makes you worry?

Josh Shapiro
Probably, if I can go back to my first answer, right, the division in this country, the President's constant attacks on the rule of law and our institutions, whether it's the media, or law enforcement, the good news is so far they're holding, and in some ways, they're stronger than ever before. But that that does make me worried. Now, the flip side of that, maybe your next question is what makes me optimistic? I don't know. Is it alright, I'll let you ask us the question, then I'll keep going.

Jenna Spinelle
Last question is what gives you hope?

Josh Shapiro
I'll tell you what, whatever comes next. And whenever that next comes, we're gonna be far stronger as a nation because of what we've had to endure over this last year and a half there. There is, I think, a great sense of responsibility that America the American people have, certainly I've seen this in Pennsylvania, where they realize that they've got to not only vote, but they've got to be more engaged in civic life as a result of what they're seeing right now coming from the White House. And that even counts for people who who will say, Well, I don't like the president. I don't like his conduct, but I like some of his policies. But I think they also recognize their you might like the tax cut you're getting or whatever the thing is that you like about the president, but you recognize that there's something not normal about this conduct, there's something not acceptable about this conduct. And we have to do better. And so whoever comes next, and whenever that happens, I do see us as a country, being in a position to come closer together as people and demand real action, it doesn't mean that our divisions on issues will go away, there are honestly held really good beliefs on both sides of the issues on whatever tax policy, health care, immigration, whatever the case may be, I may differ from so on. But folks want to have an honest dialogue again, and really get back to debating these issues in a way that's going to make us stronger as a nation. And I think that that actually keeps me real optimistic.

Jenna Spinelle
Right. Well, thank you for your time today. You have a lot on your plate. So we were very much appreciative of you taken time to join us today. Josh.

Josh Shapiro
Good to be with you. Thank you so much.

Chris Beem
All right. So there is no doubt that this this is a very impressive politician, a thoughtful, legal mind who is doing a really good job representing his, his constituency. It is really interesting to me to hear him talk about his role as being outside of politics outside of the partisan battles that you see everywhere else. He said, you know, repeatedly referred to this being the rule of law. And he brought what he said 15 or 14 cases, and every one of them. He's one. So I don't have any argument with with anything in that regard. I mean, obviously, he's he's he's doing well, representing his his constituents. I'm not sure that I am convinced that his argument that 75% I think of the cases that he has brought are bipartisan.

Michael Berkman
I'm sure that's true. It's all the involving Attorney General's. Right. Right, right.

Chris Beem
I'm sure that's true. None of that means that that hyper partisanship isn't also manifested in the Office of the Attorney General. Well, it's a partisan office, right.

Michael Berkman
And in the state of Pennsylvania, in the Commonwealth of Pennsylvania, unlike at the federal level, the attorney general is a separately elected office. So he has a constituency that's separate and distinct. From the governor unnecessarily, he's an independent actor in a way that it may be the Attorney General, the United States is not necessarily.

Chris Beem
I'm certainly not the way. The President right now wants him to be well, right.

Michael Berkman
But there is nothing normal about the relationship between the current attorney general and the president. But I just wanted to kind of mention that. I mean, what my thought on the bipartisanship is that it's like, like much of what happens in Congress is actually bipartisan, a lot. A lot of things are done with votes from Democrats, Republicans, a lot of committee hearings are without rancor. And but we just don't hear about them as much. Now, part of why we don't hear about them as much might be in as they think you were kind of insinuating. And quite tell where you were going there. But that because we're in a hyper partisan time, so we only care about the partisan things or we'd like to emphasize the partisanship. But, you know, it might be that it's at the partisanship occurs on the really important controversy. Well, that's what I would argue not the housekeeping. Right. But I do think it is worth it is worth noting that, yes, partisanship extends in a way that Madison would not have been happy with back to where we were right getting across state and federal lines. Shapiro is a member of the Democratic Party that is opposite of the Republican party of the president Donald Trump. But you know, there are also a lot of issues that come up that really do affect the state, in a nonpartisan kind of way, right. And and states are going to be legitimately concerned with things that the federal government is trying to do. And they're going to respond in a way that represents their state interest. That might not necessarily be a partisan. And I absolutely think that's true. What I thought was was interesting about about this interview, and why glad we had the chance to talk to him beyond the opportunity to meet, you know, interesting, yes, when you politician officeholder was that, you know, this is in the day to day works, and how some of what Madison talks about in Federalist 51, talks about right that we have this protection through the states. So the federal government's acting in certain ways, but but the Commonwealth has this opportunity and potential to respond and to to argue the case, to bring it before the courts and to stand up for the people of Pennsylvania to

Chris Beem
Stand up for states rights. Right. He actually says, right,

Michael Berkman
Yeah, states rights is not necessarily a conservative term, but it's, it's been owned by a conservative, I think that's right. But much of the work of liberals because of the association with civil civil rights, and slavery, you know, I mean, what were the state's rights arguments about? Right, in the pre Civil War, states rights, rights, last slaves. But but states rights is just an essential element of federal right, that the Constitution tries to sort out what the responsibilities of each level of government are, but there's a lot of ambiguity in the constitution to how it does it. And it's taken many, many court cases over the centuries, actually, to, to sort out what these responsibilities are. And it's an ever evolving type of thing.

Chris Beem
Right. It is interesting. I mean, there's a, there's I can't remember his name, but there's an argument that you hear now, States Attorneys General, arguing that federal regulation be imposed upon them, which is a long way from a states rights argument. But ideally, or at least conceptually, the job of the state's attorney general, is to advocate for the state to be the one who says this is our territory. You can't impro you can't encroach here. You can't do that to us. And what, you know, attorney, Attorney General Shapiro was arguing is that, that's my job. And if you want to understand what I do when I get out of bed in the morning, that's it.

Michael Berkman
Well, well put. Okay, I have no, I have no retort to it. So yeah, so that was that was an interesting interview. It's the first time I think we've interviewed a an office holder. Yeah. Right. Yeah, I think so. And so we appreciate the Attorney General's willingness to come on the show.

Chris Beem
All right. Well, so So yeah, that was really interesting. And I, again, we appreciate his time. So, for democracy works, I'm Chris Beem.

Michael Berkman
I'm Michael Berkman. Don't forget to rate us and subscribe to us on iTunes or wherever it is that you get your podcasts.

Chris Beem
Thanks for listening.

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