Before the U.S. Supreme Court, states have stronger grounds for contesting federal authority than they did in the past. State Attorney Generals have been propelled into the forefront as a check and balance against federal overreach.
In 1907, the National Association of Attorneys General (NAAG) formed to chart a shared antitrust strategy regarding the Standard Oil Company. The group, which also tackled issues such as habeas corpus, federal-state relations and criminal law enforcement, was staffed through state AG offices until 1936 when it was taken under the umbrella of the Council of State Governments. In 1980, NAAG split off once again as an independent association. Over the decades, its agenda has expanded to include pressing issues of each new era: internal security in the 1950s, civil rights in the 1960s, cyberspace law in the 2000s, and consumer financial protection in the 2010s.
It was in the mid-1990s that state AGs really began to innovate ways to use the powers of their office. More than 40 states came together to sue the five largest U.S. tobacco companies, charging them with consumer fraud and seeking payment for the Medicaid costs incurred for tobacco-caused illnesses. The bipartisan effort led to a groundbreaking settlement in 1998 and has provided the template for multistate litigation ever since.
Since the election, Democratic AGs have begun other actions besides opposing Trump’s travel ban. Six Democrat AGs filed a motion to defend an EPA pollution rule being challenged in court by the fossil fuel industry. Four days later, 16 Democrat AGs filed to intervene in a case regarding the Consumer Financial Protection Bureau, an independent agency the Obama administration had been defending in court. Democrat AGs have been beefing up their offices. New York--already one of the largest AG units with nearly 700 lawyers--is hiring two new senior attorneys to focus on issues related to Trump’s presidency.
In February of this year, Maryland’s Democrat-controlled legislature moved to expand the authority of their state AG for the first time since 1864, citing the unique danger posed by Trump. Maryland lawmakers are also
considering appropriating $1 million more per year to the state AG office and hiring five additional attorneys to take on the federal government.
Massachusetts AG, Maura Healey, has taken the lead in organizing a multistate working group to protect the Affordable Care Act (Prospect.org). Healey has also announced that her office is joining a lawsuit challenging President Trump’s Executive Order on immigration that bans individuals from seven predominantly Muslim countries from entering the United States.
The complaint and motion to intervene, being filed today in U.S. District Court, will make AG Healey one of the first state attorneys general to challenge an Executive Order. The AG’s Office will seek to join a lawsuit filed by the ACLU of Massachusetts and private immigration lawyers on Saturday on behalf of two associate professors from the University of Massachusetts at Dartmouth who were detained at Logan Airport. The AG’s intervention today comes on behalf of the Commonwealth as well as the University of Massachusetts (Mass.gov).
Healey, who supported Democrat Hillary Clinton, ticked off a number of concerns saying she’ll fight to defend Massachusetts’ efforts to expand health care, enforce some of the country’s toughest gun laws and maintain oversight of banks and Wall Street (Boston.cbslocal.com). Other Democrat AGs have also become more active with their office.
New York AG, Eric Schneiderman, reintroduced legislation to protect access to free birth control for New Yorkers as afforded by the health-care law (Prospect.org). The New York Attorney General led a coalition of 16 Attorneys Generals in filing an amicus brief with the U.S. Court of Appeals for the Sixth Circuit, challenging an Ohio state law that would defund Planned Parenthood and other health service providers that perform or promote abortions. The amicus brief, filed last night, was signed by a total of 16 Attorneys General: New York, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, Oregon, Vermont, Virginia, Washington, and the District of Columbia (ag.ny.gov). The significance is the state attorney general’s office offers to pursue a political agenda, at even a national level, that has led to an emphasis on fund raising for future campaigns for the position.
The Democratic Attorneys General Association (DAGA)—which had been based in Denver, Colorado since its founding in 2002 ─ now has offices in both Washington, D.C. and San Francisco. Rankin spent most of 2016 forging new relationships with groups like the National Education Association, Planned Parenthood, and the Democrat Governors Association and since Election Day, he has been working with tech groups, labor unions, Latino Victory, and the Congressional Black Caucus. In the 2016 cycle, DAGA raised $10 million. DAGA’s investments over the course of 2016 have enabled AGs to coordinate faster responses to the new president (prospect.org).
Raising funds has not been relegated solely to the DAGA. The state attorney general has hired Bernie Sanders’ digital-consulting team at a time when he’s upping his progressive profile with lawsuits and attacks on President Trump’s agenda. Schneiderman is also using his new national platform and fund-raising apparatus to help raise money for progressive candidates outside of New York.
Schneiderman hosted a New York City fund-raiser for Virginia Attorney General Mark Herring ─ the only Democrat AG up for reelection this year. Last November, Schneiderman’s campaign sent out a fund-raising solicitation for Roу Cooper, who ultimately won a tight governor’s race in North Carolina against a Republican incumbent (newscame.com). The involvement of state AG’s in national politics is not relegated to Democrats.
Republican state attorneys general have paved the way for this approach. During the Obama administration, Republican state AGs honed the legal playbook for challenging federal laws, regulations and executive orders. Promises to fight for deregulation in the courts proved to be effective fundraising appeals. In joint actions, Republican AGs challenged President Obama’s policies on immigration, health care, the environment and the workplace — raking in even more money with each successful court action (prospect.org).
The Republican Attorneys General Association (RAGA) has emerged as the primary organization directing this effort. Formed in 1999 by a few Republican attorneys general, RAGA addressed the lack of commitment by some state attorneys general to defend federalism, adhere to the law and apply a free market approach to governing.
In its first election year, RAGA made its mark on American politics by emerging as the only Republican organization to gain seats during the hard- fought 2000 elections. Since then, RAGA has multiplied its effectiveness ─ culminating most recently with the 2016 elections. It grew the number of Republican attorneys general from 27 to 29; the most seats Republicans have held than at any time in history. This success was a direct result of its high-quality candidates and strong financial support from RAGA members (republicanags.com).
The association was created due to concerns arising out of the industry-wide lawsuits that seek to promote public policy changes via the courthouse rather than the statehouse (sourcewatch.org). However, RAGA’s formidable legal efforts did not take off until the Obama years.
The association began fundraising and spending money on AG campaigns at unprecedented levels. In 2014, the group split off to become its own organization and created its own super PAC to boot. RAGA raised $16 million that year ─ nearly four times what it raised in 2010. Pharmaceutical companies, the fossil fuel industry, the U.S. Chamber of Commerce, and the Koch brothers were among the group’s largest benefactors. By 2015, Republicans commanded a majority of AG seats and, in the 2016 election, Republican attorneys general increased their numbers from 27 to 29, the most at any time in U.S. history (prospect.org).
Through the RAGA, the Republicans have been aggressive in pursuing their conservative agenda. Republican AGs have also fought against several examples of executive overreach, including: Obamacare, the EPA’s “WOTUS” rule; power plant mercury rules (Michigan v. EPA); Bureau of Land Management’s fracking rules; expansion of background checks for firearms purchases; U.S. Fish and Wildlife Service prairie chicken designation; denial of the Keystone XL Pipeline permit; and the EPA “Sue and Settle” Strategy.
In 2016 alone, the RAGA succeeded in achieving several victories for the conservative movement:
1) Republican attorneys general led the fight against President Obama’s overreaching, illegal EPA regulations, resulting in the Supreme Court’s decision to halt implementation of Obama’s signature climate change initiative ─ the Clean Power Plan.
2) Republican attorneys general won an injunction against the Department of Labor’s overtime rule, a victory for taxpayers, employers and workers.
3) Republican attorneys general led the fight against President Obama’s unlawful immigration plan, successfully securing an injunction against implementation of the President’s program known as DAPA.
4) A Texas federal judge granted an injunction barring the Obama administration’s transgender bathroom directive from the DOJ and DOE.
Ten states blocked the enforcement of the Department of Labor’s Persuader Advice Exemption Rule (republicanags.com).
Another organization that has recently emerged, the Rule of Law Defense Fund, is the public policy organization for issues relevant to the nation’s Republican attorneys general and promotes the rule of law, federalism, and freedom in a civil society. It was created in 2014 to provide a forum for Republican attorneys general to study, discuss and engage on important policies affecting the states and their citizens. The Rule of Law Defense Fund (RLDF) convenes stakeholders around their interests in federal and state legislation and rulemaking, state and multistate policy development and communication with federal policymakers regarding state interests (ruleoflawdefensefund.org). The Republicans have a long-entrenched organization in support of their efforts.
The role of State attorneys general has become more intricate in recent years. It is clear they are going to play a highly significant role in national politics for the foreseeable future. Through such organizations as the DAGA and the RAGA, attorneys general have become more organized and capable. Party cohesion towards a common agenda has allowed for AG offices of like parties to coordinate a cohesive effort, either against the federal government or against policies and laws initiated in other states. This is likely to create a subsequently new power balance for the judiciary branch in the coming years as more laws and legislation is going to be challenged for their legality in the courts.
Conservatives need to focus more attention and build more strategies around their state attorneys general. Understanding that the state attorney general will now likely play a role on the national stage making their position potentially as significant as electing a U.S. senator.
State legislators need to recognize what state attorneys general are now affecting on their own at the national level pursuant to their individual party’s agenda. Legislative bodies must then be more demanding or commanding towards what causes their AG’s to engage in outside their state boundaries.
Conservatives must regard the future position of the state attorney general as a significant force on the national political stage. They must also realize the strong party discipline that must exist that allows that office to maintain a clear vision and a unified front towards such vision.
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