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How State AGs Became a Check on the President

Republican attorneys general have already filed more than a dozen joint lawsuits against the Biden administration. All presidents should expect to be challenged by AGs from the other party.

Florida Attorney General Ashley Moody.
Florida Attorney General Ashley Moody recently sued the Biden administration over its “catch and release” policy along the southern border.
(Bob Self/Florida Times-Union/TNS)
As soon as President Biden announced his plan to require large employers to mandate vaccines, Republicans vowed to block him. “I will pursue every legal option available to the state of Georgia to stop this blatantly unlawful overreach by the Biden administration,” tweeted Gov. Brian Kemp.

He wasn’t the only governor to threaten legal action. But it didn’t take too long for state attorneys general to declare that suing is actually their job. A week after Biden’s announcement, a group of 24 GOP attorneys general sent a letter to Biden calling the mandate “unlawful and harmful” and “disastrous and counterproductive.”

They vowed to block it, although they have to wait for the federal rule to be finalized before going to court. “This is a serious and coordinated effort,” says Jim Tierney, who directs a clinic on attorneys general at Harvard Law School. “This cannot possibly be a surprise to the Biden administration.”

No surprise at all. Throughout the early months of Biden’s presidency, Republican attorneys general have already challenged him repeatedly. They banded together to file suit against his LGBTQ policies, his moratorium on oil and natural gas leases, and the provision in the American Rescue Plan, the stimulus measure passed in March, which blocks states from using its funds for tax cuts. All told, Republican AGs have joined together to sue the administration 14 times.

That’s not counting lawsuits filed by individual AGs. On Tuesday, Florida Attorney General Ashley Moody filed suit to block the administration’s “catch and release” policy along the Southern border, claiming it violates federal law. Arizona Attorney General Mark Brnovich had already filed his own lawsuit against the vaccine mandate two days before the AGs sent Biden their letter threatening collective action.

“We’re in a new normal of AG activism,” says Paul Nolette, a political scientist at Marquette University who tracks state lawsuits against the feds. “We can now expect AGs to litigate even in the first few months of an administration.”

Nolette predicts that the number of lawsuits will only increase, as the Biden administration finalizes rules and rolls back policies from the Trump administration. Republicans still have a ways to go to catch up with the number of lawsuits Democratic AGs filed against the last administration.

It was considered shocking when Republican AGs sued President Barack Obama a dozen times in each of his last two years in office. But their Democratic counterparts tripled that number in the first year of Donald Trump’s presidency alone.

It’s now entirely predictable that every time there’s a shift in control of the White House, a flurry of lawsuits will be filed by attorneys general from the other party. “The cake is fully baked now,” Nolette says.

AGs Emerge as a Force

Historically, state attorney general was a fairly quiet job. AGs are often referred to as the top law enforcement officer in the state, but criminal prosecutions are handled at the local level. AGs would file the occasional consumer protection action, but not much more than that. Back in the days when Bill Clinton was still a state attorney general, most of his colleagues were Democrats, their campaigns funded largely by trial lawyers.

Things started to change during the Clinton presidency. Mississippi Attorney General Mike Moore filed suit against tobacco companies, seeking damages for the Medicaid costs incurred by states for treating smoking-related illnesses. In 1998, after Congress failed to codify a deal with tobacco manufacturers, AGs hammered out a master settlement agreement that not only forced the companies to pay out $246 billion over the next 25 years, but imposed regulatory restrictions on them, such as a ban on marketing to children.

That was the beginning of state attorneys general acting as de facto national policymakers. AGs have since changed the rules of the game for banks, brokerage firms and pharmaceutical companies, along with countless other industries. “AGs have used their position to ally with like-minded advocacy groups and partisan interests to pursue ideological policy goals,” Nolette writes in Federalism on Trial, his 2015 book about state AGs.

Corporations have pushed back against the AGs, with business groups such as the U.S. Chamber of Commerce spending heavily to elect more Republicans to the office, while individual companies spend heavily on lobbying to sway AGs.

Republicans currently hold a bare majority of 26 AG offices. The cash settlements reached with industry groups have often been too lucrative for even business-friendly Republicans to resist. In July, a bipartisan group of state AGs announced a $26 billion settlement with four drug companies that contributed to the opioid crisis.

Taking on the Feds

AGs seemed to be slow to realize that the teamwork that made them formidable antagonists of industry could also turn them into a counterweight against Washington. During Clinton’s presidency, AGs joined to file only two or three multistate lawsuits most years.

Things started to pick up under President George W. Bush, but they really accelerated under Obama. Back then, there still wasn’t a strong impulse to file suit as soon as the administration took power. Even hostile AGs gave a new president a bit of a honeymoon. “As recently as Obama’s first year, Republican AGs grumbled about things and talked about pushing back, but they didn’t really do anything until their big lawsuit against the Affordable Care Act,” says Nolette.

They were ready to go with that one, filing suit within minutes of the bill being signed into law. Their success in challenging the ACA helped prompt more suits. (In 2012, the Supreme Court refused to invalidate the law, but did block the administration from requiring states to expand Medicaid.) Republican AGs routinely sued the Obama administration on matters such as health policy, immigration and environmental regulations.

Republican AGs filed a total of five partisan briefs with the Supreme Court during the Clinton administration. During the Obama years, they filed 20 times that many. “I go into the office, I sue the federal government and I go home,” Texas Gov. Greg Abbott said while he was still attorney general in those days.

The instinct to sue the federal government became habitual under Trump. Democratic AGs sued his administration more than 130 times, double the total under Obama or Bush. Current lawsuits against Biden are part of that same pattern, says Tierney, a former Democratic attorney general of Maine.

“It’s totally consistent with the pattern starting with the few cases in the George W. Bush years and then increasing seriously in the Obama years and the Trump years,” he says.

Political Wins

It’s not just that Democratic AGs often sued Trump. They cast themselves as a bulwark against his misdeeds.

“I will never be afraid to challenge this illegitimate president,” Letitia James, the Democratic attorney general of New York, said during her 2018 campaign. She wasn’t alone in making that kind of statement. The ability to cast themselves as partisan warriors is one of the incentives for AGs to go after presidents, Nolette says.

“For the most part, it’s all upside,” he says. “If a lawsuit succeeds, you achieve a policy goal. If it fails, you’ve still made a name for yourself and often delayed a policy for months and even years.”

If it’s a win to attack the policies of the other side, can attorneys general still cooperate in a bipartisan fashion? So far, the answer is yes. Republicans and Democrats are still working together on big cases like opioids, while also continuing their longstanding joint efforts in areas such as data privacy.

But while bipartisan cooperation still occurs through the National Association of Attorneys General, the partisan groups — the Republican and Democratic attorneys general associations — have become the central locations for AGs to strategize. Not too long ago, RAGA and DAGA shared policies of not going after incumbents on the other side, but those days are over.

State attorneys general have emerged as one of the most important checks on presidential aspirations. Within the American system of checks and balances, that’s not necessarily a bad thing. For a long time, administrative agencies set policies without direct political accountability, according to a recent law review article.

Multistate litigation “provides a crucial check on a branch of government which has been notoriously unfettered in its ability to influence national policy,” Philip Green writes in the article. “By allowing democratically elected state actors to collaborate and exert influence over national policy through litigation, constituents can now frequently hold undemocratic institutions politically accountable.”
Alan Greenblatt is the editor of Governing. He can be found on Twitter at @AlanGreenblatt.
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