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“They’ve been very aggressive, banding together across state lines to challenge a variety of policies,” one expert said about Democratic responses to the Trump administration.
Since the very start of the Trump administration, Democratic state attorneys general have positioned themselves as one of the chief antagonists of the president’s agenda, filing lawsuits to block policies from the travel ban to rollbacks of environmental regulations.
Last week, more Democratic AGs joined their ranks, with candidates flipping offices in four states: Colorado, Michigan, Nevada and Wisconsin. They now will occupy a majority of the attorneys general offices in the country, holding 27 (including the District of Columbia) to Republicans’ 24 posts.
After the election, Pennsylvania Attorney General Josh Shapiro, a Democrat, vowed that the result will fortify opposition to the White House. “In the states, AGs will work to get things done on big ticket items, including protecting individual’s civil rights and serving as the only effective check on the federal government,” Bloomberg reported Shapiro saying.
But in an interview with the Washington Post, a spokesman for the Republican Attorneys General Association characterized Democratic gains as a “natural” retrenchment after years of GOP wins, while pointing out their candidates won competitive races in states like Florida, Ohio and South Carolina.
“This is a reflection of the environment and to the fact these states had been under Republican control for a long time, and these races . . . ebb and flow,” said Zack Roday, the group’s communications director.
Paul Nolette, a political science professor at Marquette University who has studied state attorneys general, put it slightly differently, noting that Democrats traditionally held most AG seats, but after a concerted effort Republicans seized a majority for the first time in 2014. That endeavor, similar in nature to the GOP focus on racking up statehouse seat wins in recent years, really got going in 1998 with conservative AGs who were uncomfortable with the massive settlement many of their counterparts inked with tobacco companies, Nolette said.
The new wins last week means there will more state offices to help challenge the administration on regulatory issues, Nolette told Route Fifty in an interview, although for practical purposes he characterized it mostly as an incremental change. “It validates the approach that Democrats have taken in the last year and a half, the first part of Trump’s presidency,” he said. “They’ve been very aggressive, banding together across state lines to challenge a variety of policies.”
These cases include the lawsuit to block the U.S. Census from including a question asking respondents about their citizenship status, another against the Trump administration’s lowering of vehicle emission standards, and efforts to protect the DACA program for young adults brought here illegally as children.
In one key case that is ongoing, state AGs from the two political parties are facing off over the Affordable Care Act in Texas. Twenty Republicans filed their latest lawsuit to dismantle the law, while 17 Democrats are defending it after the Trump administration declined to. The latest Republican challenge to Obamacare turned into a big talking point during the election in all kinds of races, with Democrats hammering away on the fact that dismantling the ACA would eliminate current protections for people with pre-existing conditions.
One of the leaders of the Republican lawsuit against the ACA, Brad Schimel of Wisconsin, appears to have narrowly lost his seat, although the results are not yet finalized. In declaring victory, challenger Josh Kaul promised to pull the state out of the suit when he takes office.
Starting with President George W. Bush’s administration, AGs have become more partisan in their organized actions, teaming up by party to oppose the regulations coming out of the federal government, Nolette said. But he noted they sometimes still engage in a key historic function of the office, working on consumer protection lawsuits, often in concert with each other.
An ongoing issue that has recently united AGs are legal efforts against companies that manufacture prescription opioids, with lots of separate lawsuits filed. Drug companies have been pushing to have the cases consolidated with a federal case in Ohio. In an argument reminiscent of the tobacco settlement, states (along with local governments) are accusing the drug companies of deceptive marketing that downplayed the risks the companies knew existed with their products. The companies have denied the allegations.
As has been true for the past couple years, Nolette said he would expect a lot of the legal attacks on the Trump administration to come out of the powerful New York and California AG offices. The offices are significant in part because of their sizes, with large numbers of attorneys and other experts. “The New York attorney general’s office, they have scientists on staff, like climate scientists, and economists on staff who assist in environmental litigation,” Nolette said.
As expected, Democrats claimed both those seats, with current California AG Xavier Becerra winning his election and newcomer Tish James, New York City’s public advocate, advancing to the New York office.
In July, the Los Angeles Times tallied 38 lawsuits filed by Becerra against the Trump administration (for example, the office is leading the effort defending Obamacare).
Nolette said the New York office is particularly significant in part because it has jurisdiction over Wall Street. With Trump in office, a new spotlight is put on the position, as the president’s business and charity operations have been based in the state.
If Special Counsel Robert Mueller’s investigation of the president is shut down or constrained, Nolette said many will look to the New York AG’s office and James, after she is sworn in, to pick up some parts of the probe.
“To those who follow politics, she will become much more of a household name in the next few months,” Nolette said.
Laura Maggi is the Managing Editor of Government Executive's Route Fifty and is based in Washington, D.C.