During President Donald Trump’s four-year tenure, his administration has dealt with attorneys-general on almost every issue in court.
Among the subjects: the “travel ban”; the DACA (Deferred Action for Childhood Arrivals) program; Family segregation on the US-Mexico border; the “national declaration of emergency” for the construction of the border wall; international student visas; Student loan protection; Rules for clean water; Protection of transgender health care; Automobile emissions; a citizenship question for the 2020 census; US Postal Service operations; and Obamacare.
If it looks like a lot, it is.
A review of litigation against federal agencies during the Trump administration reveals that attorneys general have filed 138 multi-state lawsuits since he took office. This comes from data compiled by Paul Nolette, a political scientist at Marquette University in Milwaukee who studies the attorney general’s office.
It’s a sharp rise from Trump’s predecessors, including Barack Obama, whose administration was sued 78 times during his two terms, and George W. Bush, whose administration was sued 76 times during his two terms.
“The number of AG lawsuits is not in the charts,” said Nolette. “Nowadays they are really ready to go because once a regulation is finalized, within a week, sometimes a day or two, the lawsuit comes in. You are ready to work with it.”
Any attempt by Donald Trump to deny New York access to a life-saving # COVID19 vaccine will simply be answered with a lawsuit.
Stop making politics with people’s lives.
– NY AG James (ewNewYorkStateAG), November 13, 2020
The vast majority of lawsuits were filed by states with Democratic attorneys general, a reversal of 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 Democratic Attorney General Xavier Becerra was part of the multilevel lawsuits, according to Nolette.
Massachusetts attorney general Maura Healey, a Democrat whose state has been a plaintiff on dozen of cases against the Trump administration, said the White House had taken extreme positions that she believed were against the law and required consistent action.
“We had to be there under that administration when the president and his facilitators engaged in behavior that was illegal, unconstitutional and harmed the people of our state,” said Healey, co-chair of the Democratic Attorneys General Association, the Democratic Attorneys-General of 24 states and Washington, DC
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 more than twice as many lawsuits against Trump in just four years than the Republicans, who have filed against Obama over eight years, shows that the Democrats use the courts to play politics,” said Kelly Laco, national press secretary for the Republican Attorneys General Association trying to elect more Republicans to the position.
During the Trump administration, the Environmental Protection Agency was the most sued of all federal agencies – 47 times – and this was a frequent target among previous administrations as well.
These chief legal officers have a variety of powers and mandates to protect their states’ rights, enforce their laws, and defend consumers. This explains why they have so often come into conflict with the Trump administration legally and politically, experts say.
“The AGs have really proven themselves,” said Nolette. “They use their institutional power to the full. And since the AGs are very independent, they can do so without being bound by the governor or the legislature, which means that they can prioritize whatever they want.”
Among the earliest multi-state lawsuits filed during the Trump administration were Democratic attorneys general from 16 states and the District of Columbia calling on the U.S. 4th Court of Appeals in Richmond, Virginia to uphold a ruling that affected much of the population blocked. called the travel ban, which wanted to suspend immigration from some predominantly Muslim countries to the USA.
The case was tried in court and the attorneys general were assisted by federal decisions invalidating or scaling back versions of the ban. Ultimately, the matter reached the Supreme Court, which upheld the travel restriction in a 5-4 ruling praised by Trump.
SUPREME COURT SUPPORTS TRUMP TRAVEL BAN. Impressive!
– Donald J. Trump (@realDonaldTrump) June 26, 2018
Trump said in a statement at the time that it was an “enormous victory” and that “this judgment is also a moment of profound justification”.
But, according to Nolette, Trump hasn’t often succeeded in court, and attorneys general won 79 percent of their lawsuits, with about 60 more undecided.
Nolette said that in multi-state lawsuits, attorneys general have the advantage of deciding which district court to file and possibly obtaining the most favorable decision from a judge, a process known as “forum shopping”.
For example, Democratic attorneys general could try filing lawsuits in the districts of Northern California and Southern New York, while their Republican counterparts frequently chose Texas during the Obama administration, Nolette said.
Trump and his Republican allies have now swiftly overhauled the federal judiciary, installing more than 150 district judges over the past four years to fill post-Obama postings and making the Supreme Court tilt more conservatively.
While Trump continues to question the results of his re-election against Democrat Joe Biden, the projected winner, observers expect pending lawsuits against the Trump administration to be suspended as President-elect Biden has promised to wind down many of Trump’s policies.
New York attorney general Letitia James, a Democrat, said last month that her office is already preparing a list of legal steps to support Biden’s team.
Ultimately, if the Biden administration changes policies in their favor, pending lawsuits by Democratic attorneys general against the Trump administration could be dismissed.
However, Republican attorneys general are expected to file new lawsuits to deter the Democrats from reversing this policy. Last week, the Republican Attorneys General Association recruited Attorney 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 stand on the front lines of a possible Biden Harris administration to defend the rule of law and protect the constitutional freedoms of future generations,” Laco said.
Greg Zoeller, a Republican who served as Indiana’s attorney general from 2009 to 2017, said the “legislative malfunction” was a major reason Obama enforced his own executive orders and administrative rules, which alarmed Republican attorneys general.
“His frustration with a stalled Congress was understandable, but it raised obvious constitutional issues,” said Zoeller.
While Zoeller joined multi-state lawsuits against the Obama administration, he also circumvented legal action sought by then-Indiana Governor Mike Pence when he did not believe a court challenge would be successful.
“It was also criticized that these legal challenges were political and based on political differences,” said Zoeller. “My response to the media and to my colleagues at Democrat AG was that they might regret the day a Republican president with a similar logic would exercise executive power. The past four years are evidence of what I warned about at the time . “
James Tierney, a former Maine Democratic attorney general who is now a lecturer at Harvard Law School, said Trump was largely to blame for the spate of lawsuits after using executive orders and other guidelines to advance his agenda, frequently evading Congress and administration legislation.
“Depending on what President Biden does – and more importantly, how he does it – GOP AGs can be expected to sue,” said Tierney. “How often and with what success will depend on what President Biden actually does.”