On a Tuesday night in early February, not three weeks after Donald Trump’s inauguration, three federal judges in San Francisco heard arguments about whether to halt his first major policy undertaking. Trump had issued an executive order banning hundreds of thousands of travelers from entering the country, including citizens of seven Muslim-majority countries, and all refugees. As many as 60,000 individuals had their visas revoked. Almost immediately, a pair of Democratic attorneys general, Washington state’s Bob Ferguson and Minnesota’s Lori Swanson, brought suit against Trump’s executive order, arguing it violated the 14th Amendment’s guarantee of equal protection under the law as well as the First Amendment’s Establishment Clause, harmed all Washington and Minnesota businesses and communities, and was “undermining [their] sovereign interest” as welcoming destinations for immigrants and refugees.
More than 100,000 people from across the nation sat glued to a YouTube livestream of the legal hearing. The high-profile courtroom drama unfolded amid massive protests against Trump in streets and airports. Besides Democratic attorneys general, civil rights groups and private lawyers filed dozens of other lawsuits in federal courts across the country. A few days later, the United States Court of Appeals for the Ninth Circuit blocked Trump’s executive order, ruling that it failed to advance U.S. national security. So went the opening round in what will surely be a continuing legal struggle over Trump’s powers.
As millions of Americans steel for years of conflict with a Republican-controlled Congress and an authoritarian president, Democratic state attorneys general—politicians with independent authority to sue on behalf of their states—are expected to take a leading role on the front lines of the mobilized resistance. Though their numbers have fallen in recent years, the 21 Democratic AGs now in office have pledged to work together to use their powers to protect citizens from executive overreach. They will be a crucial source of support in fighting a president who says he will deport millions of undocumented immigrants and deregulate everything from the banking industry to the environment.
The Supreme Court and, ironically enough, Republican state attorneys general have paved the way for the Democratic AGs. Thanks to the Supreme Court, the states have stronger grounds for contesting federal authority than they did in the past, and during the Obama administration Republican state AGs honed the legal playbook for challenging federal laws, regulations, and executive orders. Democratic AGs may now be able to use that same playbook to contain Trump, especially because the Republican Congress shows little evidence of serving as an independent check on the executive branch. Since Democrats at the federal level have no power to conduct investigations, much less bring indictments, state AGs have been propelled into the forefront as a check and balance against one-party national government. (...)
It was in the mid-1990s, though, that state AGs really began to innovate new ways to use the powers of their office. More than 40 states came together to sue the five largest U.S. tobacco companies, charging them with consumer fraud and seeking payment for the Medicaid costs incurred for tobacco-caused illness. The bipartisan effort led to a groundbreaking settlement in 1998 and provided the template for multistate litigation ever since.
“We knew AGs were increasing [their] power back in 1995, when they started to take on the powerful tobacco industry,” says Karen White, the executive director of the Conference of Western Attorneys General, another AG association, which White has worked for since 1991. “This was the first time that AGs had front-page news headlines every day. Their powers were elevated, and people started to understand what they do, and could do. It wasn’t the first multistate case, but it was the most impactful in terms of catching people’s attention and catapulting AGs into a force to be reckoned with.”
Paul Nolette, a Marquette University political scientist who studies AGs, finds that while there were a few multistate cases in the 1980s, their numbers increased during the 1990s and 2000s and reached new heights during the Obama years. Some were bipartisan—particularly around consumer protection issues—but the later years of the last century and early years of the new one saw the birth of party-affiliated AG associations and more multistate, partisan litigation.
Republicans led the way, bolstered by the Republican Attorneys General Association (RAGA), a group dedicated to electing Republican AGs and litigating cases based on conservative legal philosophy. RAGA launched in 1999, moving under the auspices of the Republican State Leadership Committee in 2002. But the group’s formidable legal efforts did not take off until the Obama years.
And take off they did. Launching a concerted effort to beef up its political power, RAGA began fundraising and spending money on AG campaigns at unprecedented levels. In 2014, the group split off to become its own organization, creating its own super PAC to boot. RAGA raised $16 million that year, nearly four times what it raised in 2010. Pharmaceutical companies, the fossil fuel industry, the U.S. Chamber of Commerce, and the Koch brothers were among the group’s largest benefactors. Promises to fight for deregulation in the courts proved to be effective fundraising appeals. In joint actions, Republican AGs challenged President Obama’s policies on immigration, health care, the environment, and the workplace—raking in even more money with each successful court action.
Increased campaign spending paid off. By 2015, Republicans commanded a majority of AG seats, and in the 2016 election, Republican attorneys general increased their numbers from 27 to 29, the most at any time in U.S. history. (...)
Democratic AGs will surely look to the example set by their GOP colleagues as they prepare to oppose Trump’s policies. During the Obama years, Republican AGs took their cases to Texas courts, which are chock-full of conservative judges who are amenable to their arguments. The GOP did not originate “forum shopping”—Democratic AGs won injunctions against George W. Bush’s policies from district court judges in California’s more liberal Ninth Circuit—but the Republicans did increase the practice. Greg Abbott, Republican governor of Texas, says that on a typical day when he was Texas’s AG, he went into the office, sued the federal government, and went home. Abbott sued the Obama administration 31 times, and his successor, Ken Paxton, brought 17 additional legal challenges.
For nearly a century after Massachusetts v. Mellon, a 1923 Supreme Court case, states were treated like any other litigant. They were not allowed to bring lawsuits unless they had “standing” to sue—that is, they could not challenge federal policies they believed were generally bad unless they could show a concrete and specific injury caused by the challenged conduct that could be remedied by a court. A harm affecting everyone was not a sufficient legal basis.
“Otherwise you’d get every state marching into court the second that you do something they don’t like,” says Stephen Vladeck, a University of Texas Law School professor. “You’d turn what are really political disputes into court challenges at the outset. Find me a federal policy that all 50 states endorse.”
Under George W. Bush, however, Massachusetts’s AG, joined by 11 other Democratic AGs, sued the Environmental Protection Agency to regulate greenhouse gases. In a surprising 5–4 decision in 2007, the Supreme Court gave Massachusetts “special solicitude” in the standing analysis, making it easier for states to get into court than it is for individuals and private organizations. The ruling effectively expanded states’ authority to bring lawsuits against the federal government.
Under Obama, Republican AGs pushed open this door even further. In 2014, Obama announced new policies to give undocumented parents and lawful permanent residents permission to live and work for three years without fear of deportation. Twenty-six Republican AGs sued the federal government in response, arguing that the president violated procedural norms and exceeded his constitutional authority.
Abbott argued that Texas had standing to challenge Obama’s immigration program because his state would suffer a financial burden in providing undocumented immigrants with state-subsidized driver’s licenses. A Texas district judge, Andrew Hanen, agreed that this burden constituted sufficient “harm” to bring the case and issued a national injunction to block the order. (Hanen, it should be noted, was no fan of Obama: He had previously been on record saying that the administration worked with drug cartels to smuggle children illegally over the Mexican border.) In a 2–1 decision, an appellate panel on the Fifth Circuit upheld Hanen’s injunction.
Last year saw even more preliminary national injunctions against Obama’s policies, all issued by federal district court judges in Texas. Republican AGs were able to block several Department of Labor regulations, a letter from the Department of Education advising schools about policies regarding transgender students and public-school bathrooms, and a rule interpreting an anti-discrimination clause in the Affordable Care Act.
Some scholars, such as Samuel Bray, a professor at UCLA School of Law, have been speaking out against the trend of issuing national injunctions—a legal innovation that didn’t become commonplace until the latter half of the 20th century. The idea that a single district judge could issue an injunction to block federal policy nationwide, as opposed to just restraining the defendant’s conduct vis-à-vis the plaintiff, was, Bray says, unthinkable for most of U.S. history.
But what goes around comes around, and Democratic AGs intend to use the new legal strategies forged by their Republican colleagues to challenge President Trump.
“Republican AGs engaged in continuous warfare,” says Maryland’s attorney general, Brian Frosh. “Scott Pruitt [the former Oklahoma Republican AG and new EPA head] created a federalism unit in his office and went out and sued the Obama administration repeatedly. Maybe that’s what this evolves into for us. I really hope it doesn’t, but we will engage when necessary.”
Democrats, in short, have no interest in unilaterally disarming.
by Rachel M. Cohen, American Prospect | Read more:
Image:Elaine Thompson
More than 100,000 people from across the nation sat glued to a YouTube livestream of the legal hearing. The high-profile courtroom drama unfolded amid massive protests against Trump in streets and airports. Besides Democratic attorneys general, civil rights groups and private lawyers filed dozens of other lawsuits in federal courts across the country. A few days later, the United States Court of Appeals for the Ninth Circuit blocked Trump’s executive order, ruling that it failed to advance U.S. national security. So went the opening round in what will surely be a continuing legal struggle over Trump’s powers.As millions of Americans steel for years of conflict with a Republican-controlled Congress and an authoritarian president, Democratic state attorneys general—politicians with independent authority to sue on behalf of their states—are expected to take a leading role on the front lines of the mobilized resistance. Though their numbers have fallen in recent years, the 21 Democratic AGs now in office have pledged to work together to use their powers to protect citizens from executive overreach. They will be a crucial source of support in fighting a president who says he will deport millions of undocumented immigrants and deregulate everything from the banking industry to the environment.
The Supreme Court and, ironically enough, Republican state attorneys general have paved the way for the Democratic AGs. Thanks to the Supreme Court, the states have stronger grounds for contesting federal authority than they did in the past, and during the Obama administration Republican state AGs honed the legal playbook for challenging federal laws, regulations, and executive orders. Democratic AGs may now be able to use that same playbook to contain Trump, especially because the Republican Congress shows little evidence of serving as an independent check on the executive branch. Since Democrats at the federal level have no power to conduct investigations, much less bring indictments, state AGs have been propelled into the forefront as a check and balance against one-party national government. (...)
It was in the mid-1990s, though, that state AGs really began to innovate new ways to use the powers of their office. More than 40 states came together to sue the five largest U.S. tobacco companies, charging them with consumer fraud and seeking payment for the Medicaid costs incurred for tobacco-caused illness. The bipartisan effort led to a groundbreaking settlement in 1998 and provided the template for multistate litigation ever since.
“We knew AGs were increasing [their] power back in 1995, when they started to take on the powerful tobacco industry,” says Karen White, the executive director of the Conference of Western Attorneys General, another AG association, which White has worked for since 1991. “This was the first time that AGs had front-page news headlines every day. Their powers were elevated, and people started to understand what they do, and could do. It wasn’t the first multistate case, but it was the most impactful in terms of catching people’s attention and catapulting AGs into a force to be reckoned with.”
Paul Nolette, a Marquette University political scientist who studies AGs, finds that while there were a few multistate cases in the 1980s, their numbers increased during the 1990s and 2000s and reached new heights during the Obama years. Some were bipartisan—particularly around consumer protection issues—but the later years of the last century and early years of the new one saw the birth of party-affiliated AG associations and more multistate, partisan litigation.
Republicans led the way, bolstered by the Republican Attorneys General Association (RAGA), a group dedicated to electing Republican AGs and litigating cases based on conservative legal philosophy. RAGA launched in 1999, moving under the auspices of the Republican State Leadership Committee in 2002. But the group’s formidable legal efforts did not take off until the Obama years.
And take off they did. Launching a concerted effort to beef up its political power, RAGA began fundraising and spending money on AG campaigns at unprecedented levels. In 2014, the group split off to become its own organization, creating its own super PAC to boot. RAGA raised $16 million that year, nearly four times what it raised in 2010. Pharmaceutical companies, the fossil fuel industry, the U.S. Chamber of Commerce, and the Koch brothers were among the group’s largest benefactors. Promises to fight for deregulation in the courts proved to be effective fundraising appeals. In joint actions, Republican AGs challenged President Obama’s policies on immigration, health care, the environment, and the workplace—raking in even more money with each successful court action.
Increased campaign spending paid off. By 2015, Republicans commanded a majority of AG seats, and in the 2016 election, Republican attorneys general increased their numbers from 27 to 29, the most at any time in U.S. history. (...)
Democratic AGs will surely look to the example set by their GOP colleagues as they prepare to oppose Trump’s policies. During the Obama years, Republican AGs took their cases to Texas courts, which are chock-full of conservative judges who are amenable to their arguments. The GOP did not originate “forum shopping”—Democratic AGs won injunctions against George W. Bush’s policies from district court judges in California’s more liberal Ninth Circuit—but the Republicans did increase the practice. Greg Abbott, Republican governor of Texas, says that on a typical day when he was Texas’s AG, he went into the office, sued the federal government, and went home. Abbott sued the Obama administration 31 times, and his successor, Ken Paxton, brought 17 additional legal challenges.
For nearly a century after Massachusetts v. Mellon, a 1923 Supreme Court case, states were treated like any other litigant. They were not allowed to bring lawsuits unless they had “standing” to sue—that is, they could not challenge federal policies they believed were generally bad unless they could show a concrete and specific injury caused by the challenged conduct that could be remedied by a court. A harm affecting everyone was not a sufficient legal basis.
“Otherwise you’d get every state marching into court the second that you do something they don’t like,” says Stephen Vladeck, a University of Texas Law School professor. “You’d turn what are really political disputes into court challenges at the outset. Find me a federal policy that all 50 states endorse.”
Under George W. Bush, however, Massachusetts’s AG, joined by 11 other Democratic AGs, sued the Environmental Protection Agency to regulate greenhouse gases. In a surprising 5–4 decision in 2007, the Supreme Court gave Massachusetts “special solicitude” in the standing analysis, making it easier for states to get into court than it is for individuals and private organizations. The ruling effectively expanded states’ authority to bring lawsuits against the federal government.
Under Obama, Republican AGs pushed open this door even further. In 2014, Obama announced new policies to give undocumented parents and lawful permanent residents permission to live and work for three years without fear of deportation. Twenty-six Republican AGs sued the federal government in response, arguing that the president violated procedural norms and exceeded his constitutional authority.
Abbott argued that Texas had standing to challenge Obama’s immigration program because his state would suffer a financial burden in providing undocumented immigrants with state-subsidized driver’s licenses. A Texas district judge, Andrew Hanen, agreed that this burden constituted sufficient “harm” to bring the case and issued a national injunction to block the order. (Hanen, it should be noted, was no fan of Obama: He had previously been on record saying that the administration worked with drug cartels to smuggle children illegally over the Mexican border.) In a 2–1 decision, an appellate panel on the Fifth Circuit upheld Hanen’s injunction.
Last year saw even more preliminary national injunctions against Obama’s policies, all issued by federal district court judges in Texas. Republican AGs were able to block several Department of Labor regulations, a letter from the Department of Education advising schools about policies regarding transgender students and public-school bathrooms, and a rule interpreting an anti-discrimination clause in the Affordable Care Act.
Some scholars, such as Samuel Bray, a professor at UCLA School of Law, have been speaking out against the trend of issuing national injunctions—a legal innovation that didn’t become commonplace until the latter half of the 20th century. The idea that a single district judge could issue an injunction to block federal policy nationwide, as opposed to just restraining the defendant’s conduct vis-à-vis the plaintiff, was, Bray says, unthinkable for most of U.S. history.
But what goes around comes around, and Democratic AGs intend to use the new legal strategies forged by their Republican colleagues to challenge President Trump.
“Republican AGs engaged in continuous warfare,” says Maryland’s attorney general, Brian Frosh. “Scott Pruitt [the former Oklahoma Republican AG and new EPA head] created a federalism unit in his office and went out and sued the Obama administration repeatedly. Maybe that’s what this evolves into for us. I really hope it doesn’t, but we will engage when necessary.”
Democrats, in short, have no interest in unilaterally disarming.
by Rachel M. Cohen, American Prospect | Read more:
Image:Elaine Thompson
