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Without Obama to Sue, What Are Republican AGs Up To?

While Democratic AGs go on the offensive, their Republican counterparts are urging Trump to get even tougher against Obama-era policies.

Texas Attorney General Ken Paxton is one of nine Republicans demanding Trump gets rid of the Obama-era DACA program.
(TNS/Jae S. Lee)
Just a few months ago, Republican attorneys general were aggressively taking the Obama administration to court, notching significant victories that blocked executive actions on immigration and the environment.

Now that Donald Trump sits in the Oval Office, it's Democrats' turn to wage legal battles over some of the very same issues. But while it's true Republican AGs have been less active -- figuring out how best to retrench -- they haven't entirely yielded the national policy stage to Democrats.

Most notably, Texas AG Ken Paxton and nine other Republican AGs have told the Trump administration that it needs to get rid of the Obama-era Deferred Action for Childhood Arrivals (DACA) program, which defers deportation of undocumented immigrants who came to the U.S. as children. If it doesn't act, the nine AGs have warned, they will challenge the administration in court, despite their shared party affiliation.

They've also been busy playing defense. Eleven Republican AGs, for instance, filed a brief to support a request by oil and gas giant, Exxon, to stop an investigation spearheaded by Democratic AGs into its decades-long history of climate denial.

And, perhaps most noteworthy, the Republican Attorneys General Association has decided to abandon a "hands-off" agreement it struck with Democrats not to target the other party's incumbent officeholders in elections. The association has already raised $7.4 million through the first half of 2017 compared to the Democrats' 3.1 million.

"As state attorneys general have grown more political in recent decades, we've seen the same polarization and balkanization we've seen elsewhere in the political system," says David Freeman Engstrom, a Stanford University law professor.

All this comes as Democratic AGs have assumed lead roles in opposing some of President Trump's policies. The list of current legal efforts by Democratic AGs is long and substantive: There has been an average of one lawsuit or legal motion every five days since Trump's inauguration, according to the Associated Press.

Democratic officials say the party's AG ranks are more active than they were under the last Republican president, George W. Bush. And in solidly blue states where Democrats have control over all the levers of government, money is flowing to the AG office, says former Maine Attorney General James Tierney, who is now a Harvard Law School lecturer focusing on state AGs.

Recent actions by Democratic AGs include challenging Trump's immigration restrictions from certain Muslim-majority nations, confronting the weakening of environmental regulations, insisting that the U.S. Department of Education follow through on rules to curb predatory lending affecting student loan borrowers and siding with Planned Parenthood -- 16 AGs filed a brief to oppose Ohio's efforts to curb Planned Parenthood and other abortion providers.

Democratic AGs are also taking Trump to court over "emoluments." The attorneys general of Maryland and the District of Columbia are among those arguing that foreign-government payments to Trump-owned businesses qualify as emoluments, something banned by the Constitution. Separately, New York Attorney General Eric Schneiderman has been looking into the practices of Trump's businesses, many of which operate in his state.

"There's no question that Democratic AGs are suing and threatening to sue the administration, and they're having some success," says Tierney. He adds that one of the biggest impacts for rank-and-file lawyers working in AG offices across the country is the need to respond to an upsurge in Freedom of Information Act requests related to these legal efforts.

Despite partisan tensions, there have been fleeting signs of bipartisan cooperation.

AGs from both parties are working together through the bipartisan National Association of Attorneys General (NAAG) on amending the Communications Decency Act to fight sex trafficking, as well as tackling elder abuse and working to secure federal assistance to fight opioid addiction.

Scott Harshbarger, who served as Massachusetts' Democratic attorney general in the 1990s, says it was much more common back then for AGs to work across party lines on such issues as the tobacco industry settlement and antitrust actions. While he supports many of today's initiatives by Democratic AGs against Trump, he also mourns the loss of the ability to work on a wide variety of issues where common ground exists between the two parties.

"One of the concerns we had was that if people came to see AGs as being as political as governors, it would weaken us in our states," he says. "That's begun to happen. Now they're seen as political animals. I think it's a very unfortunate outcome."

Louis Jacobson is a GOVERNING contributor.
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