U.S.A. (NBC) (11/16/20)— During President Donald Trump’s four years in office, his administration has sparred in court with state attorneys general over nearly every issue.
Among the topics: the “travel ban”; the Deferred Action for Childhood Arrivals program, or DACA; family separations at the U.S.-Mexico border; the “national emergency” declaration to build the border wall; international student visas; student loan protections; clean water rules; transgender health care protections; automobile emissions; a citizenship question on the 2020 census; U.S. Postal Service operations; and Obamacare.
If it seems like a lot, it is.
A review of litigation against federal agencies during the Trump administration shows that state attorneys general have filed 138 multistate lawsuits since he took office, according to data compiled by Paul Nolette, a political scientist at Marquette University in Milwaukee who studies the office of attorney general.
It’s a sharp increase from Trump’s predecessors, including Barack Obama, whose administration was sued 78 times during his two presidential terms, and George W. Bush, whose administration was sued 76 times during his two terms.
“The number of AG lawsuits is off the charts,” Nolette said. “These days, they’re really ready to go, as in once a regulation is finalized, within a week, sometimes within a day or two, the lawsuit is filed. They’re ready to run with it.”
The vast majority of the lawsuits were filed by states with Democratic attorneys general, a reversal from the mostly Republican attorneys general who sued the Obama administration, he said. Only six lawsuits against the Trump administration involved a Republican attorney general.
California’s Democratic attorney general, Xavier Becerra, has been part of the most multistate lawsuits, according to Nolette’s data.
Massachusetts Attorney General Maura Healey, a Democrat, whose state has been a plaintiff in dozens of cases against the Trump administration, said the White House adopted extreme positions that in her view flouted laws and required consistent action.
“We had to be there under this administration as the president and his enablers engaged in conduct that was illegal and unconstitutional and did harm to residents of our state,” said Healey, a co-chair of the Democratic Attorneys General Association, which supports the Democratic attorneys general of 24 states and Washington, D.C.
Republican attorneys general represent 26 states. Some have accused Democratic attorneys general of choosing legal arguments on the basis of political expediency.
“The fact that the Democrats have filed over twice as many lawsuits against Trump in just four years than the Republicans filed against Obama over eight years makes it clear that Democrats are using the courts to play politics,” said Kelly Laco, national press secretary for the Republican Attorneys General Association, which seeks to get more Republicans elected to the position.
During the Trump administration, the Environmental Protection Agency has been sued the most of any federal agency — 47 times — and it was a frequent target during previous administrations, as well.
These chief legal officers have a range of powers at their disposal and mandates to protect their states’ rights, enforce their laws and defend consumers, which helps explain why they have clashed so often legally and politically with the Trump administration, experts say.
“The AGs have really come into their own,” Nolette said. “They’re taking full advantage of their institutional power. And since AGs have a great deal of independence, they can do so without being tied by the governor or state legislators, which means they can prioritize what they want.”
One of the earliest multistate lawsuits filed during the Trump administration included Democratic attorneys general of 16 states and the District of Columbia who asked the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, to uphold a ruling that blocked a major part of the so-called travel ban, which sought to suspend immigration into the U.S. from some predominantly Muslim countries.
The case was tied up in the courts, and the attorneys general were supported by federal rulings invalidating or scaling back versions of the ban. Ultimately, the issue reached the Supreme Court, which upheld the travel restriction in a 5-4 ruling praised by Trump.
Trump said in a statement at the time that it was a “tremendous victory” and that “this ruling is also a moment of profound vindication.”
But according to Nolette, Trump hasn’t often succeeded in the courts, and state attorneys general have won 79 percent of their lawsuits, with about 60 more still undecided.
Nolette said the attorneys general have the benefit in multistate suits of deciding which district court to file in and potentially get the most favorable ruling from a judge, a process known as “forum shopping.”
For instance, Democratic attorneys general might seek to file suits in the districts of Northern California and Southern New York, whereas during the Obama administration, their Republican counterparts often chose Texas, Nolette said.
Trump and his Republican allies, meanwhile, have overhauled the federal judiciary at a brisk pace by installing more than 150 district judges over the past four years to fill post-Obama vacancies, as well as ensuring that the Supreme Court tilted more conservatively.
While Trump continues to challenge the results of his run for re-election against Democrat Joe Biden, the projected winner, observers expect outstanding lawsuits against the Trump administration to be temporarily halted, because President-elect Biden has promised to unwind many of Trump’s policies.
New York Attorney General Letitia James, a Democrat, said last month that her office was already preparing a list of legal actions to aid Biden’s team.
Ultimately, pending lawsuits filed by Democratic attorneys general against the Trump administration could be dismissed should the Biden administration change policies in their favor.
But new lawsuits are expected to be filed by Republican attorneys general trying to stop Democrats from reversing those policies. Last week, the Republican Attorneys General Association tapped Attorneys General Chris Carr of Georgia, Eric Schmitt of Missouri and Steve Marshall of Alabama for leadership roles in 2021.
“The Republican attorneys general are preparing to be first on the front lines against a possible Biden-Harris administration in order to defend the rule of law and protect constitutional freedoms for future generations,” Laco said.
Greg Zoeller, a Republican who was Indiana’s attorney general from 2009 to 2017, said the “dysfunction of the legislative branch” was a big reason Obama pushed through executive orders and administrative rules of his own, which alarmed Republican attorneys general.
“His frustration with a deadlocked Congress was understandable, but it raised obvious constitutional questions,” Zoeller said.
While Zoeller joined multistate lawsuits against the Obama administration, he also sidestepped legal actions sought by Mike Pence, then the governor of Indiana, when he didn’t think a challenge could be successful in court.
“There was also criticism that these legal challenges were political and based on policy differences,” Zoeller said. “My response to media and to my Democrat AG colleagues was that they might rue the day when a Republican president would wield executive authority using similar logic. The past four years are a testament to what I warned of at the time.”
James Tierney, a Democratic former attorney general of Maine who is now a lecturer at Harvard Law School, said Trump has largely himself to blame for the flurry of lawsuits after he used executive orders and other directives to push his agenda, often bypassing Congress and administrative laws.
“Depending on what President Biden does — and more importantly, how he does it — GOP AGs can be expected to sue,” Tierney said. “How often and to what degree of success will depend on what President Biden actually does.”
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