By the end of 2017, Democratic attorneys general in 22 states and three U.S. territories had jointly sued the Trump administration 35 times, a record that has some academics and former attorneys general worried that a state office with nonpartisan interests is becoming a polarizing force.
Paul Nolette, a professor of political science at Marquette University who tracks state attorneys general, is one of them.
“I think the intensifying partisanship among AGs threatens to interfere with the many bipartisan cross-state activities that AGs do to protect the interest of consumers, to address nationwide issues that affect all of the states and to express the interest of states against problematic federal requirements,” he said.
“There is still a good chunk of bipartisan activity — the opioid investigation, for example — but this will fray if AGs retreat mainly to their partisan camps when determining what a problem worth tackling is,” he added.
Multistate litigation against the federal government isn’t new. But in the last three years, this kind of litigation has escalated. Prior to the 35 Democratic lawsuits against the Trump administration, Republican attorneys general jointly sued the Obama administration 13 times in 2015 and 14 times in 2016 — each records at the time.
During his 2½ years as Illinois attorney general from July 1980 through January 1983, Republican Tyrone C. Fahner said he only brought a handful of lawsuits against others, and none against the federal government. Suing the federal government for partisan reasons “cheapens the office,” said Fahner, now a partner at Mayer Brown and the firm’s former chairman.
“I know that sounds sanctimonious, but it didn’t used to be that way,” Fahner said.
The recent numbers do not capture the full scope of legal activity state legal officers have undertaken. Illinois Attorney General Lisa M. Madigan and other attorneys general have filed amici curiae briefs in other lawsuits, submitted comments on federal regulations and written many letters to federal agency heads and members of Congress.
For instance, Illinois joined 13 other states and the District of Columbia in suing the U.S. Environmental Protection Agency last December for allegedly failing to follow federal law by not designating by Oct. 1 certain areas of the country as affected by smog.
“We cannot accept U.S. EPA’s failure to act when the public health risks of smog pollution are so well known, particularly for children and older adults,” Madigan said in a statement at the time. “I will continue to urge the courts to require U.S. EPA to fulfill its duty under the Clean Air Act to protect residents from harmful pollution.”
Not your daddy’s AG
Between 1980 and 2014, states jointly sued the federal government 147 times, according to data collected by Marquette’s Nolette.
With the exception of 2003 and 2010, the number of lawsuits filed against the federal government in any year numbered in the single digits. Many of the lawsuits were filed over questions of federalism — if and how the federal government can force states to go along with certain regulatory decisions, Nolette said.
Bernard Nash, a co-chair of Cozen O’Connor’s State Attorneys General Practice in Washington, D.C., said state attorneys general stepped up their enforcement of consumer issues initially as a reaction to the Reagan administration.
“Going back 20 years ago, the office of attorney general was much more cut and dry, meat and potatoes than it was today,” Nash said. “It was only over the past 20 years, when the federal government withdrew from certain types of activities that attorneys general started to think beyond meat and potatoes — what can we do within our jurisdiction?”
Democratic attorneys general became a lot more aggressive during George W. Bush’s administration, filing 36 lawsuits during his eight years in office. But those lawsuits were focused on environmental issues, Nolette said.
“The tool of multistate litigation goes back decades … but there’s been a real shift on using it as a tool to push everything coming out of Washington,” Nolette said.
Up the ante
It wasn’t until the March 2010 passage of the Patient Protection and Affordable Care Act — commonly referred to as Obamacare — that Republican attorneys general began suing the Obama administration collectively. From there, Nolette said, “it’s gone off the charts just in terms of the quantity.”
Republican attorneys general sued the Obama administration 11 times in 2010. By the end of the administration’s second term, that number rose to 46. And unlike the joint state lawsuits of yore, the GOP-led lawsuits challenged every major policy initiative that was being pursued by the Obama administration. Democratic attorneys general followed suit, challenging the administration on everything from education policy, immigration and net neutrality. Nolette said the attorneys generals’ offices — and the country as a whole — has entered a “new normal.”
“Virtually everything gets challenged coming out of Washington, but not just challenged, but challenged immediately,” Nolette said.
He referenced how New York Attorney General Eric Schneiderman, a Democrat, released a video vowing to sue the Federal Communications Commission’s repeal of net neutrality rules that prohibited internet service providers from choking the access speeds of certain websites in favor of others on the same day the repeal occurred.
Nash and his co-chair of Cozen’s attorneys general practice, Lori Kalani, said it was too early to declare whether the current legal political environment between state attorneys general and the federal government is a blip or the new normal.
Nash noted many of the lawsuits filed have not been decided by the U.S. Supreme Court or any federal appeals court yet, and that will take time. But he acknowledged that “it will not go back to the normal of what it was 20 years ago.”
Illinois, under Madigan’s direction, joined in at least 11 of those lawsuits, according to data from the Democratic Attorneys General Association.
Illinois has jointly sued the Trump administration for delaying the designation of areas with unhealthy levels of smog, delaying the implementation of a chemical accident safety rule, not publishing energy-efficiency standards for common appliances, failing to comply with a Freedom of Information Act request on federal immigration policies, repealing Deferred Action for Childhood Arrivals protections, withholding ACA subsidies and three different Department of Education rules on for-profit colleges.
At a March 5 news conference at the Thompson Center, Madigan said her office’s legal activity against the Trump administration is part of “protecting our democracy.”
“Unfortunately, the policies we’re seeing coming out of the White House and Congress are, as I said, ripping at the foundations of our democracy,” Madigan said. “I do think that more attorneys general have felt the need to step up, to use the powers we have to make sure we are standing up for, not just consumers, but that we are standing up for immigrants living in our states, standing up for people who need and deserve to have health care. We’re standing up for our environment. We’re standing up for our students who still have an enormous amount of student-loan debt. We’re standing up for people in the LGBTQ community, who are facing heightened discrimination from the federal administration.”
On the 2018 campaign trail, resisting the Trump administration is a key part of the message incumbent Democratic attorneys general and candidates are espousing in Illinois and nationwide.
On its website, the Democratic AGs group — which provides political and policy support to its members — proudly states its members are “the first line of defense against the new administration.”
Association Executive Director Sean Rankin and former Maine attorney general James Tierney echoed Madigan’s beliefs. Tierney, who now teaches at Harvard Law School, predicted there would be far fewer lawsuits if Trump was a “normal Republican president,” following the party establishment’s policy goals.
In a statement, Rankin said Trump’s administration has shown a “complete lack of respect for the rule of law,” which Democratic attorneys general have been fighting to maintain. They are “the only check on this administration — and they will continue to stand up against Trump, those around him or any other government officials of either party who act unethically in the execution of their office.”
Rankin’s Republican counterpart, Republican Attorneys General Association Executive Director Scott Will, described the Democratic attorneys general’s activity as extreme while he defended his members’ own actions against the Obama administration.
“For Republicans, it was simple: We sued when the Obama administration exercised authority that they did not have — going around Congress to attempt and rewrite law,” Will said in a statement. “Defending the rule of law and enforcing the Constitution are fundamental for Republicans; no matter who occupies 1600 Pennsylvania, that will never change. For Democrats, the rule of law is a tagline — their actions reflect a dramatic lurch to the left; decision-making based off political point-scoring.”
Why?
Both associations framed their members’ lawsuits as checks against an out-of-control presidency. But their coordination wouldn’t be possible if they hadn’t developed “well-oiled machines” to routinely challenge the federal government, Marquette’s Nolette said.
And both sides have won. The Obama administration’s Clean Power Plan, which aimed to cut carbon dioxide emissions to a certain level by 2030, was tied up in litigation initiated by Republican attorneys general, which allowed the Trump administration to announce it would revise the policy late last year. Meanwhile, Democratic attorneys general have successfully stymied or stalled three iterations of the Trump administration’s travel ban.
“The fact that the opportunity is there, and it tends to be quite successful, gives the AGs a real incentive to keep escalating this conflict,” Nolette said.
The litigation can wreak havoc on a private entity’s ability to strategize in a fast-moving political and legal environment, Kalani and Nash said. For instance, the Dodd-Frank Wall Street Reform and Consumer Protection Act gave state attorneys general the ability to independently enforce the regulations of the Consumer Financial Protection Bureau.
“When CFPB director Rich Cordray … began promulgating regulations in areas from student loans to auto financing to payday lending, we counseled our clients about their companies’ potential exposure not only to CFPB enforcement of those regulations, but also to enforcement by state AGs,” Kalani wrote.
Under the Trump’s acting CFPB director, Mick Mulvaney, the bureau has indicated it will revise many rules affecting everything from student loans to payday lending as well as state attorneys general’s ability to enforce those specific rules.
State attorneys general still have other tools at their disposal, like their state laws against unfair and deceptive acts and practices.
“[W]e consistently remind our clients that AGs have broad enforcement authority under their own state’s UDAP laws … and thus, even if the CFPB rolls back its regulations, companies still need to understand and appreciate any potential exposure they would have under a state’s consumer protection laws,” Kalani wrote.
Both Nolette and Tierney also suggested the attorneys general’s offices are a reflection of the country’s increasing polarization. But Nash downplayed that, finding a simple explanation that Democratic attorneys general are more likely to support the policies of a Democratic administration and vice versa with Republicans.
Kalani credited the escalation of party-line attorneys general litigation to the increased use of state solicitors general to handle appeals on a state’s behalf.
“Prior to the last few years, that was a role that didn’t exist in these offices,” Kalani said. “Once you have someone in that position, you find more and more things to do.”
Not all Doom and Partisan Gloom
Despite the heated rhetoric and increase in filings, Republican and Democratic attorneys general continue to work together. Last September, 41 state attorneys general including Madigan subpoenaed five major manufacturers of pharmaceutical painkillers over drug marketing. On March 6, Illinois and 54 other state and territorial attorneys general urged House leadership to pass legislation that would give victims of child pornography restitution.
“These lawsuits have almost no impact on day-to-day operations of the attorney general,” Tierney said, who said the “vast majority” of the work an attorney general does is considered nonpolitical. But Tierney warned that if an attorney general “acts like a congressman, they’re going to be treated like a congressman.”
“If they’re casting lawsuits without considering the legal merits … they’ll start to lose the respect of the judiciary, and they’re going to start losing more cases,” he added.
Nash and Kalani disagreed with Nolette’s concerns about the partisan nature of the attorneys general offices interfering with the offices’ nonpartisan work on consumer protection and public health. They specifically cited the states’ collective investigations into the massive data breaches that were revealed last year and the settlement reached in February against Takata, which had installed faulty air bags in millions of U.S. cars.
“On these consumer protection issues, the party lines just blur. While AGs follow in the more partisan world that we live in today, AGs follow suit in the way all elected officials do,” Kalani said. “They continue to work together on consumer issues.”