Attorneys general embrace role as check on executive power, on right and left

After President Obama took office, Republican attorneys general reenvisioned states as a check on federal power 'in a way that hadn’t been done much previously.' There are signs Democratic AGs may adopt the tactic in the Trump administration.

Republican attorneys general have gained a reputation in recent years – a reputation some have taken great pride in – of being the executive branch’s chief antagonists, teaming up and spending millions of dollars fighting the Obama administration’s policies in the courts.

The strategy has led to many high-profile successes. White House policies on immigration, health care, and climate change have all been stymied, if not stopped entirely, by litigation from red states such as Texas.

It hasn’t always been that way. States attorneys general have been suing the executive branch since the Reagan administration, but as partisan politics has taken hold in attorneys general offices around the country, and as presidential power has expanded, the chief law enforcement officers for states have increasingly come to see themselves as a vital check on the federal government’s power.

And with Donald Trump’s presidency looming after a campaign marked by promises of potential constitutional violations, Democratic attorneys general – who in fact laid the groundwork for the strategy popularized by Republicans during the Obama administration – appear likely to adopt similar tactics.

“This activity has got much more partisan in nature, more polarized, and it’s intensified,” says Paul Nolette, a political science professor at Marquette University who studies attorneys general. “That sort of strategy is going to continue in the Trump administration, particularly with Democratic AGs trying out some new strategies to try and delay and frustrate policies coming out of Washington.”

'Big bang' of AG activism

The case Professor Nolette describes as the “big bang of modern-day state AG activism” was, ironically, a historic example of bipartisan cooperation from attorneys general around the country: the 25-year, $246 billion lawsuit settled between 46 state attorneys general and four major US tobacco companies in 1998.

A year after that case concluded, Republican AGs formed the Republican Attorneys General Association (RAGA). A few years later, Democratic AGs formed their own group.

Since the tobacco settlement, Nolette says, some conservative attorneys general – including William Pryor of Alabama, who was part of the settlement and cofounded the RAGA – have become “concerned that liberal AGs [are] using their position to essentially achieve regulations and achieve policy goals that they were unable to achieve through Congress or other means.”

The case many point to came in 2007. In that case, Massachusetts v. Environmental Protection Agency, 12 states (11 with Democratic AGs, and one Republican AG) successfully sued the US EPA, arguing that the agency should be required to regulate carbon dioxide emissions because of how the gas contributes to global warming.

In deciding in the states’ favor, the US Supreme Court ruled that states “are not normal litigants” when challenging the federal government, and are entitled to “special solicitude” in protecting their “quasi-sovereign interests.”

That decision “opened the door” to states to sue if they can prove they would be injured by a certain federal policy, says Bill Marshall, a professor at the University of North Carolina School of Law and deputy White House counsel during the Clinton administration.

What Republican attorneys general then did after Obama took office, he adds, was “reenvision states as a check on federal power in a way that hadn’t been done much previously.”

The textbook case for this strategy was litigation against the Affordable Care Act, when a group of Republican attorneys strategized legal challenges months in advance, filing their first lawsuit minutes after the bill became law in 2010. Republican AGs also led large multistate lawsuits that blocked the implementation of Obama’s executive actions on immigration, and have hampered regulations limiting carbon dioxide emissions from power plants.

Republican AGs filed 97 partisan briefs in Supreme Court cases during the first seven years of the Obama administration, according to Nolette’s research, compared with five cases during the Clinton administration. Texas Attorney General Greg Abbott (now state governor) and his successor, Ken Paxton, between them filed 46 lawsuits against the Obama administration, more than any other state, and at a cost of about $5.9 million as of mid-2016.

Some Democratic attorneys general have already said that, if they perceive both improper actions and inactions, they are prepared to take the Trump administration to court.

Eric Schneiderman, attorney general of New York, said in a statement that if Scott Pruitt – the attorney general of Oklahoma, whom Mr. Trump has nominated to head the EPA – “fails to uphold our nation’s environmental laws, I stand ready to use the full power of my office to compel their enforcement by the agency.” Maura Healey of Massachusetts wrote in a fundraising appeal last month that she “won’t hesitate to take Donald Trump to court if he carries out his unconstitutional campaign promises.” Those include a Muslim registry and a temporary ban on Muslims entering the US, stripping the citizenship from people who burn the American flag, and expanding libel laws against the press.

Law enforcement officials, not politicians

That isn’t to say that courts will be flooded with frivolous lawsuits once Trump takes office, nor will it only be Democratic attorneys scrutinizing his behaviors.

“Attorneys general in both parties are law enforcement officials. They’re not going to sue anyone unless they believe a law has been broken,” says Jim Tierney, a former Democratic attorney general of Maine.

And he isn’t certain that Trump’s presidency will lend itself to legal arguments about executive overreach, a frequent concern cited by conservatives about the Obama administration.

"You had a liberal president who wanted to do things," says Mr. Tierney. "Here we might have a president who doesn’t want to do anything, if he chooses to not enforce environmental or consumer protection laws. So there’s not really anything there to sue."

While Democratic AGs are likely to be more litigious than their Republican colleagues – Republicans currently outnumber Democrats 28 to 22 in state attorneys general offices – there could be several areas of concern for Republicans under Trump, from environmental and consumer protection laws to financial and antitrust laws.

“The United States has elected someone guilty of consumer fraud. That’s a little unusual,” says Tierney, referencing the $25 million settlement Trump agreed to last month to resolve a multistate class action lawsuit over his real estate seminar program. The settlement did not include an admission of guilt.

Trump has also “never once talked about vigorous environmental or consumer [protection] enforcement,” he adds, “so they’re watching pretty closely.”

Checks on presidential power

Attorneys general of both parties will also be conscious of maintaining, and perhaps strengthening, their burgeoning reputations as key checks on presidential power, according to Professor Marshall.

“The window has certainly been opened at this point, and all AGs are going to be pretty cognizant of the potential role they might have vis-a-vis the federal government,” he says.

“Democrats were probably less interested in doing that during the Obama administration,” he adds, “but now [that] we have a Trump administration, both sides are looking at this kind of issue, and I see that going on into the foreseeable future.”