The Hour of the Attorneys General
In 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.
Since the election, Democratic AGs have begun other actions besides opposing Trump’s travel ban. The day before his inauguration, six Democratic AGs filed a motion to defend an EPA pollution rule being challenged in court by the fossil fuel industry. Four days later, 16 Democratic AGs filed to intervene in a case regarding the Consumer Financial Protection Bureau, an independent agency the Obama administration had been defending in court. Many suspect Trump will fire the CFPB’s director and downgrade the agency. “The CFPB has been the cop on the block, and as Republicans try to defund and kill off the agency, there will be a huge gap to be filled,” says Caroline Fredrickson, the president of the American Constitution Society. “AGs will be a major part of that response.”
AGs have also been preparing to defend health-care rights. Massachusetts AG Maura Healey has taken the lead in organizing a multistate working group to protect the Affordable Care Act, and New York AG Eric Schneiderman reintroduced legislation to protect access to free birth control for New Yorkers as afforded by the health-care law.
AGs have been beefing up their offices. New York—already one of the largest AG units, with nearly 700 lawyers—is hiring two new senior attorneys to focus on issues related to Trump’s presidency. Schneiderman already has an ongoing investigation of the Trump Foundation. In February, Maryland’s Democratic-controlled legislature moved to expand the authority of their state AG for the first time since 1864, citing the unique danger posed by Trump. Maryland lawmakers are also considering appropriating $1 million more per year to the state AG office and hiring five additional attorneys to take on the federal government.
AGs are under no illusion: It’s all hands on deck.
STATE ATTORNEYS GENERAL trace their roots to 17th-century England, where the office of AG became independent of the king. According to James Tierney, a Harvard Law professor who runs a national website tracking state attorneys general, the idea of an independent attorney general migrated to the American colonies and became a fixture of American state governments after the Revolution. In contrast to the U.S. attorney general, who is appointed by the president and can be removed at any time, most state AGs are elected, strengthening their position as true independent checks against executive power.
In 1907, the National Association of Attorneys General (NAAG) formed to chart a shared antitrust strategy regarding the Standard Oil Company. The group, which also tackled issues such as habeas corpus, federal-state relations, and criminal law enforcement, was staffed through state AG offices until 1936, when it was taken under the umbrella of the Council of State Governments. In 1980, NAAG split off once again as an independent association. Over the decades, its agenda has expanded to include pressing issues of each new era: internal security in the 1950s, civil rights in the 1960s, cyberspace law in the 2000s, and consumer financial protection in the 2010s.
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, after dragging their feet, began rethinking their own strategies in 2014. They had a part-time committee—the Democratic Attorneys General Association (DAGA)—which had been based in Denver, Colorado, since its founding in 2002. DAGA was disconnected from the rest of the party, though. And while it had always done some fundraising, budgets for AG races had been fairly small.
“RAGA could really marshal its Republican AGs, whereas DAGA just wasn’t as good,” says Travis LeBlanc, who served as special assistant attorney general of California and a senior adviser to California AG Kamala Harris. “RAGA really ran like a really well-oiled machine.”
At the end of 2015, DAGA decided to relocate to Washington, D.C., and turn itself into a full-time operation. In May 2016, the group hired its first full-time executive director, Sean Rankin, a veteran Democratic political operative. Charged with aiding and electing Democratic AGs across the country, Rankin tells me he thinks he has the coolest job in politics.
Today, DAGA has offices in both Washington, D.C., and San Francisco. Rankin spent most of 2016 forging new relationships with groups like the National Education Association, Planned Parenthood, and the Democratic Governors Association, and since Election Day he has been working with tech groups, labor unions, Latino Victory, and the Congressional Black Caucus. “We needed to leverage new strategic partnerships,” says Rankin. “This component seems obvious, but for DAGA it didn’t exist before in the same way.”
Despite the decline in the number of Democratic AGs, DAGA is quick to note its successes in the 2016 election: Democrats won two out of three of their most contested AG races, even outperforming Hillary Clinton in states such as Pennsylvania and North Carolina. DAGA’s fundraising prowess still pales in comparison to RAGA’s; in the 2016 cycle, DAGA raised $10 million, compared with the more than $23 million RAGA raked in. But in February, DAGA hired its first full-time fundraiser, and has been working to raise money from progressive interest groups motivated to fight back against Donald Trump.
“Gun control, reproductive choice, environmental issues—at the end of the day, these are all being played out more in the courts than they are in Congress, and so our Democratic interest groups are coming to realize they need to support Democratic AGs more going forward,” says Steve Jewett, a political consultant who oversees campaign work for DAGA.
“RAGA certainly has the lead, but that lead is not going to last forever,” Rankin adds. “We are going to catch up.”
DAGA’s investments over the course of 2016, while made on the assumption that Clinton would win, have nevertheless enabled AGs to coordinate faster responses to the new president. But how effectively the Democratic AGs will contest Republican policies and Trump’s agenda remains to be seen.
“Republicans are different, they’ve always been more sophisticated and disciplined in the orchestrated exercise of power,” says a political consultant involved with AGs who agreed to speak on background. “With RAGA, they’re pretty harsh with one another. If you don’t participate, if you don’t play along, you won’t get support. I don’t think DAGA has been as disciplined about that.”
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-Ã -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.
WHEN A STATE FILES A LAWSUIT, it invokes a special sort of gravitas that private entities don’t have. And when ten, or fifteen, or twenty states join together to sue a corporation or the federal government, it sends a powerful message—something AGs rarely overlook.
“Every case is about the law, and the politics,” says Amanda Frost, a professor at the Washington College of Law at American University. “If you read the complaints AGs file, they are very often written with reporters in mind, with the politics in mind.”
Not coincidentally, Democratic AGs hailing from solidly blue states such as California, New York, Washington, and Massachusetts have shown themselves particularly willing to position themselves on the front lines of the political resistance against Trump.
Schneiderman, New York’s AG, brings with him personal experience battling Donald Trump in court. In the summer of 2013, two years before Trump announced his candidacy, Schneiderman filed a lawsuit against him, alleging that Trump University, which ran a real-estate training program from 2005 until 2011, ripped off thousands of people all over the country.
In response, Trump created a website to attack Schneiderman, sued him for $100 million, and filed ethics claims against him—all of which went nowhere. The Trump University case appeared to settle this past November, with Trump agreeing to pay $25 million. (One of the former students has recently pulled out of the settlement, raising questions as to whether the case is indeed resolved.) “From our perspective, [Trump’s] response to our suit was really a preview of the scorched-earth tactics he’d go on to use during the presidential election,” Schneiderman says. “Look, Trump has had a successful career involving charming people or bullying people, and at this point in his life, we shouldn’t expect anything different from him.”
Legal problems with Trump’s taxes or businesses could be a state as well as a federal issue, and if any state AG investigates those issues it would be Schneiderman, since the Trump Organization is headquartered in New York. Some progressives have been calling on him to launch such investigations, but none are yet under way, and they could be difficult for a state AG to pursue. (Investigating Trump might have been easier for Preet Bharara, the fired U.S. Attorney for the Southern District of New York.) But at a conference of the National Association of Attorneys General in early March, Schneiderman said “it is not sustainable” for Trump to refuse to disclose his holdings or to divest them. He added that his office is currently studying Trump’s potential conflicts of interest, but that “it would be premature to say” how his team will proceed.
Following the election, Massachusetts Democratic AG Healey organized town halls to gauge citizens’ reactions to Trump around her state. Hundreds turned out—far more, she says, than she ever anticipated. “I’m hearing from Democrats, Republicans, and independents. They’re really upset. I’ve never seen anything like this,” Healey says. “We need to stand up on the front lines to play defense, but also to play offense and continue to pass laws that help people, the economy, the environment, and consumers, in the face of a president and an administration that may abdicate any and all responsibilities.”
AFTER DISAPPOINTING RESULTS in the 2016 federal elections, Democratic party leaders—including Tom Perez, the new chair of the Democratic National Committee—say they recognize the need to shift political focus back to the states.
“Republicans have taken so many states, dominating governor’s mansions, legislatures, and even state AGs,” says Healey. “That’s because the Republican Party made a concerted effort to focus on the school committee on up. We have got to do a better job of telling everyday people why Democratic policies translate to prosperity.”
Democrats may find that refocusing on states produces more than short-term political gains. For years, the GOP has positioned itself as the party of federalism. But there is also a progressive version of federalism, historically associated with Louis Brandeis, the early 20th-century reformer and Supreme Court justice, who envisioned states as “laboratories of democracy.” Democratic AGs seeking to act as checks on the Trump administration might find themselves reinvigorating this ideal.
Take, for example, Trump’s threat to cut off billions of dollars to states and cities that refuse to help with deportations. Democrats may find themselves grateful for certain Supreme Court decisions that they otherwise oppose. In its 5–4 ruling on the Affordable Care Act in 2012, the Supreme Court struck down the provision of the law that effectively forced the states to expand Medicaid. The Court held that by making all federal Medicaid funds conditional on the expansion, Congress would be unconstitutionally commandeering state governments. In the age of Trump, Democrats may now find that decision a helpful precedent in protecting states from having their state and city police forces commandeered for immigration enforcement, on penalty of losing federal funds they would otherwise have the right to receive.
“Trump’s never been in government, his people have never been in government, they’re not lawyers, and they don’t seem to have a sense of the Constitution at all,” says Columbia Law School’s James Tierney. “They’re going to learn that we’ve got judges; we’ve got good, strong, judges. And a lot of those suits will be brought by attorneys general.”
Lawyers will be watching the Trump administration like hawks, looking for any slight procedural violation. Not only can state AGs sue for things Trump affirmatively does; they can also sue for inaction if they feel the president fails to fulfill his duties under the law.
“It’s actually much less complicated than reporters think it is,” Tierney says. “If someone does not enforce the law, then someone has to do something about it. We haven’t even begun to see what cases will be dropped, what unfair settlements will be struck—but people are watching very closely. And if [Trump] operates in a way that impacts the sovereignty or the proprietary interests of the citizens of the state, AGs will sue.”
TIERNEY ADMITS AGS ARE more partisan than they were a few years ago but says they’re still less partisan than Congress or the American public. AG partisanship may be set to escalate, however, in dramatic new ways.
In November 2015, Schneiderman launched a probe into ExxonMobil in response to news investigations that suggested Exxon knew since the 1970s that its products were heating up the atmosphere, yet intentionally misled investors and the public about it. Schneiderman requested internal Exxon documents spanning the past 40 years. Schneiderman said he had suspicions that, as in the tobacco cases of the 1990s, corporate executives in the oil industry may have had hidden knowledge that their products had harmful consequences. California AG Kamala Harris opened an investigation in January 2016, and Maura Healey of Massachusetts joined Schneiderman’s probe two months later.
In May 2016, 13 Republican members of the House Committee on Science, Space and Technology sent a letter demanding that Democratic AGs and environmental groups turn over their own documents to show whether their Exxon investigations were politically motivated. A month later, ExxonMobil filed a federal lawsuit in Texas against Healey, claiming her AG probe was politically motivated and violated Exxon’s corporate right to free speech. Lamar Smith, the House Science Committee chairman from Texas, followed up in July by issuing subpoenas to Healey, Schneiderman, and eight environmental organizations.
“The attorneys general are pursuing a political agenda at the expense of scientists’ right to free speech,” Smith said at the time. (ExxonMobil is headquartered in Texas.)
Both Democratic AGs responded that Congress lacked the authority to intervene in their state-level investigations, and refused to comply. In mid-February, Lamar Smith issued new subpoenas.
Paul Nolette says he’s never seen this kind of congressional interference before and that for the most part, corporate investigations, such as when state AGs probe pharmaceutical companies, have been considered nonpartisan. “That may be changing,” he says. “I suspect this won’t be a one-off thing.”
“You now have a Republican-controlled Congress wasting taxpayer money harassing state AGs, sending multiple subpoenas, which it has no authority to issue,” Healey tells me. “We have the authority to do this investigation, and it’s critically important that it’s not hamstrung by political machinations exercised by the House committee. Let’s be very clear about what this is. It’s an abuse of federal power, and an example of a committee that isn’t interested in facts or science looking to carry the water for corporate interests.”
AGS ARE MOSTLY ELECTED, so a legal strategy for resisting Trump will require not just victories in the courtroom but in the polling booth as well. DAGA has already been eyeing the 2018 electoral landscape, recruiting candidates, and raising money.
ACLU donations skyrocketed in the wake of Trump’s immigration executive order, but no similar wave of cash poured into DAGA’s coffers. Rankin is optimistic that such fundraising will be coming; in addition to its new fundraiser, DAGA has been talking to progressive groups and other organizations that want to help Democratic AGs raise money. Rankin says the organization received its first million-dollar donation in mid-February. “That’s never happened before,” he says.
In many states, attorneys general are the best-situated leaders to run for higher office as a result of their experience, statewide reputation, and legal victories they may have won.
“Our AGs are out there saying, ‘Listen, I’m here to fight for you, I’m going to defend you against big interest groups that are against you or do you harm,’” says Jewett, DAGA’s election consultant. “We look at our Republican counterparts and they’ve essentially been sending a message of, ‘We’re going to fight regulation, fight Obama.’ I think that’s not a long-term winning strategy and Republicans are going to struggle to find a message to stay relevant.”
Right now, faced with a president whom most progressives consider unfit and dangerous, relevance is not a problem for Democratic AGs. No other progressive force in the country is as well positioned to investigate the Trump administration and to take it to court.
Postscript: This article's count of Republican and Democratic AGs reflected the numbers as they will be after the confirmation of the new Republican attorney general in New Hampshire. The District of Columbia also has a Democratic AG.