In a recent commentary recounting the Pacific Coast states’ resistance to a wide array of Trump administration policies, New York Times columnist Timothy Egan celebrated that Washington Attorney General Bob Ferguson “has filed 36 lawsuits against the Trump administration and has not lost a case.” It is impressive that Ferguson has not lost a case, even given that he is litigating in the generally liberal Ninth Circuit and Washington state courts. But should we really be celebrating the burgeoning reliance on state-sponsored litigation founded in policy disagreements?
Of course, every case has a legal theory, generally claiming a violation of the Administrative Procedures Act, a statutory mandate or the Constitution. But the partisan nature of these lawsuits belies any claims by attorneys general that they are suing on principle and in defense of the rule of law. For example, multistate lawsuits challenging Trump administration policies relating to the census, student loans, ozone emissions, firearms, associated health plans, immigration and international travel were signed onto by nine to 20 state AGs — all Democrats.
{mosads}During President Trump’s first two years, 47 multistate lawsuits were filed against his administration. Over two full terms, the Obama administration faced 46 multistate lawsuits, the George W. Bush administration 44, the Clinton administration 18, and the Reagan administration 39. While Democratic AGs were suing the Trump administration with abandon, 20 states challenged the continued enforcement of the Affordable Care Act. All but four of the signing attorneys general were Republican. The practice is bipartisan, but the lawsuits are partisan.
Former Texas Gov. Greg Abbott often quipped about his time as attorney general: “I go into the office in the morning. I sue Barack Obama, and then I go home.” Abbott was not alone among state attorneys general of both parties in suing the federal government over policy disagreements. Often these lawsuits are filed within days of an executive order or proposed administrative action, having been collaboratively prepared in anticipation of the federal action.
State attorneys general are quick to defend these multistate partisan lawsuits by asking who, if not we, will rise to the defense of those negatively affected by federal administrative policies. And they claim that flexing their litigation muscles is federalism at work — the states resisting what they perceive to be bad federal policies.
The answer to the who-besides-us question is Congress. The members of Congress are elected to make federal policy and to oversee the executive implementation of those policies. State attorneys general are elected to provide legal advice to their state officials and to be the chief law enforcement officer in their respective states. Both Republican and Democratic associations of attorneys general claim a broader role, but both national associations exist largely to coordinate partisan political agendas and promote the political careers of their members. State AGs are not elected to second-guess the policy initiatives of the federal government.
As for federalism, state attorneys general of both parties have a legitimate and important role — indeed, a responsibility — to defend the sovereign powers of their states and to challenge federal intrusions on those powers. But the surge of multistate lawsuits against the Trump administration, like those against the Obama administration, is almost entirely partisan. These lawsuits are brought not to defend the constitutional prerogatives of the states but to disrupt and block the policies of the federal government.
“The more AGs act like congressmen, the more they’ll be treated like congressman,” former Maine attorney general James Tierney told U.S. News & World Report. “It’s endangering the very function of attorney general.” Even worse, the multistate lawsuit craze invites the courts to intervene in public policy disputes. That many courts have done so only underscores that some judges also are willing to step beyond their constitutional role.
The politicization of state attorneys general begets further politicization of the courts at the expense of Congress and the will of the people who elect them.
James L. Huffman is professor and dean emeritus of Lewis & Clark Law School in Portland, Ore. Follow him on Twitter @JamesHu41086899.