January 25, 2019

State AGs emerge as force to challenge incumbent federal administration

During the eight years of President Barack Obama, a follower of the news might have come to believe that his Democratic administration’s biggest antagonist was not Republicans in Washington, but Republican attorneys general across the country who challenged the administration on a slew of policies and rules, including health care and the environment.

In comes the Republican administration of Donald Trump. In his first two years, the president is finding out what his predecessor learned – attorneys general from the opposing political party can be formidable opponents.

“It so happens that it is the Democratic side that has taken the lead with this administration,” acknowledged Ellen Rosenblum, Oregon’s Democratic attorney general whose office has joined 17 of the 20-plus significant lawsuits the AGs have brought against the Trump administration in its first 24 months.

Rosenblum spoke to a committee of the American Bar Association Section of Local and State Government Law on Jan. 25 at the ABA Annual Meeting in Las Vegas. Because of a conflict, she postponed her trip to the meeting and spoke by phone, outlining the various cases that she and her Democratic counterparts are bringing against the Trump administration, including the first travel ban case, which her office initiated.

Even though the U.S. Supreme Court ultimately upheld the travel ban executive order, Rosenblum said the AG suits were effective in “watering down the initial ban that we felt was unconstitutional and mean spirited.”

In terms of a majority, the results of the 2018 election flipped the political landscape for attorneys general, with 26 Democrats, 23 Republicans and one independent now holding office. Some national media reports have indicated that in an era characterized by gridlock and dysfunction at the federal level, the attorneys general have emerged as the one group that gets things done.

Rosenblum observed that historically attorneys general have been active in challenging federal administrations in court, particularly during the civil rights era.  But things have stepped up in recent years.

“Actually suing the government is not so new,” she said of the AG activism. “It goes from one side to another depending on who is in power.”

There are even websites that follow some of these actions. New York University Law School, for example, has an environmental webpage that lists 44 active lawsuits alone in the environmental arena since the president took office. Some were filed by a small number of attorneys general; others by a larger group.

When you add agency filings to the mix, there are 154 different actions through Dec. 14, 2018. Oregon is participating in 76 of those.

“It would take me all day to tell you the amount of environmental litigation (the AGs) are involved in,” Rosenblum said, calling the amount “overwhelming.”

She listed as among the most important are actions defending the Affordable Care Act given the Trump administration has declined to do so, and challenging a citizenship question in the 2020 census. Both cases are now moving through the federal courts.

Coming down the road, she added, is a “gag rule” on family planning programs banning any guidance by doctors and medical practitioners related to abortion. “We are expecting the rule to drop any day,” she said, noting the attorneys general will be ready to challenge the action.