Department of Justice

Make Federalism Great Again

State Attorneys General are leading the fight against Trump.

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Every state likes federalism when it voted for the loser in the presidential election. Georgia is all about state’s rights when black people are president/are allowed to read. California likes federalism when “Christians” are in charge and interested in throwing gay people to the lions. Federalism is what keeps New York from being Texas, and since Texans and New Yorkers are thankful for that, we’re all “federalists” from time to time.

But the trend of state attorneys general using their constitutional powers to challenge the federal government in court is new. The Washington Post has a graph, for you visual learners.

You’ll note the spike in State AG lawsuits against the president started in the Obama administration, but has clearly accelerated under Donald Trump. You’ll also note Donald Trump has been president for less than a year! We barely even have victims of the Trump era yet; for the most part these lawsuits are objecting to Trump’s theories. What’s going to happen once people start dying thanks to the president’s policies?

These lawsuits are politically motivated, almost by definition. The Washington Post notes that bipartisanship is largely devoid from these challenges:

While multistate AG litigation came into view as early as the Reagan administration, the spike we’ve been seeing shows that over the past few years, stable coalitions of AGs have organized largely by party. That’s new. In the 1980s, when AGs challenged federal policy, they tended to do so in bipartisan groups. The litigation was also about a smaller range of policies, primarily targeting the Reagan administration’s failure to regulate Midwestern carbon emissions, which led to acid rain in downwind states.

But it’s also worth remembering that state attorneys general are still lawyers, and therefore bound by legal conventions. The Peninsula Daily News has a good article about how Washington Attorney General Bob Ferguson goes about figuring out how to fight the federal government:

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State Attorney General Bob Ferguson uses a three-point test to decide whether to sue the Trump administration.

Are Washingtonians being harmed? Does the state have good legal arguments? Does the state Attorney General’s Office have standing to bring a case against the president?

“If the answer to those questions are yes, yes and yes, then I’m interested,” said Ferguson, who has filed 17 lawsuits and three amicus briefs against the administration since President Donald Trump took office in January.

“People’s lives are being impacted in dramatic ways in each of these cases.”

The important trend here seems to be that State AGs are looking for ways to fight the federal government, as opposed to simply looking at how to protect themselves from federal overreach. If the president does something, these state actors are looking for “good” legal arguments, as opposed to looking to avoid conflict.

One wonders if trend would continue if Congress ever got off its ass and passed legislation? The back end of the Obama administration and the entirety of the Trump era have been one executive order after another. Congress hasn’t done jack. It’s entirely possible that the president’s power to decree things is not as strong as the presidents think.

Then again, the Affordable Care Act was passed by Congress and ended up having to survive roughly 24,507 state AG challenges before it was established. And Trump will have to survive another 10,000 challenges as he attempts to dismantle it via Twitter.

This might just be what our country is now. Future presidents can expect to have everything they do challenged by whatever state attorney general has a problem with it.

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I don’t know if the Founders intended “federalism” to work this way, but a federal government that was gridlocked and slow moving was a big part of their plan. The wisdom of that plan depends a lot on which thing your state is trying to stop the government from doing.

State attorneys general have taken off as a partisan force in national politics [Washington Post]
State attorney general says he uses three-point test before deciding to sue Trump administration [Peninsula Daily News]

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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