Increased Role for State AGs as Congress Shirks Duty

State litigation against the federal government has increased dramatically since the Clinton administration, Daniel B. Rodriguez, of Northwestern University Pritzker School of Law, Chicago, said Aug. 3 during a panel at the American Bar Association’s annual meeting in Chicago.

There was a noticeable jump in such litigation during the Obama administration, as red-state attorneys general sought to counter what they saw as executive overreach, Misha Tseytlin, the Wisconsin Solicitor General, said.

But the Trump administration, still less than two years old, is already facing a significant amount of litigation.

Though there are concerns that such litigation can make the judicial system seem political, there are positives, too.

For years, Republican AGs almost exclusively brought suit to fight what they saw as executive overreach, William H. Hurd, of Troutman Sanders LLP, Richmond, Va., said. Hurd was the first Solicitor General of Virginia.

The recent interest by Democratic AGs could lead to more balanced results, Hurd suggested.

Dramatic Increase

Only 18 cases filed by state AGs challenged executive policies during the Clinton administration, Rodriguez said. Although that was lower than the number filed during the Reagan administration, it was within the normal range, Rodriguez said.

That number jumped 250 percent during the George W. Bush administration, when there were 45 such cases, he said.

It jumped again under President Barack Obama, when there were 59 cases, Rodriguez said.

Those suits successfully challenged key Obama-era policies, including the Clean Power Plan and deferring immigration action for certain individuals who came to the country without documentation.

But not even two years into the Trump administration, there have already been 46 multi-state cases filed by state AGs challenging executive policies, Rodriguez said. And the trend is likely to continue, he said.

So far, blue-state AGs have challenged hot-button administration policies related to the travel ban, citizenship questions on the census, the cancellation of deferred action for “Dreamers,” and the cancellation of state and local tax deductions.

Congress’s Failure

Tseytlin traces the increase to Congress’s “falling down on the job” of countering executive overreach.

He left private practice to join public service after Obama began implementing by “executive fiat” policies that he couldn’t get through Congress, he said.

He took particular umbrage at the implementation of the deferred action program, despite Obama’s earlier professed belief that unilateral action on the issue wasn’t proper.

Taking a Page

Now Democrats have taken a page from Republicans and filed their own suits against the Trump administration, Oregon Attorney General Ellen F. Rosenblum said.

Democratic concern for federalism in the face of executive overreach is welcome, Tseytlin said.

But such suits could degrade the public confidence in a neutral judiciary, Robert H. Thomas, the head of the ABA Section of State and Local Government Law, said.

Actions against the Obama administration were largely led by Republican AGs, Rodriguez said. Current litigation against the Trump administration is largely led by Democrats.

But there are a lot of bi-partisan efforts by state AGs, too, Rosenbaum said. She pointed to investigations over opioid use and data privacy.

Neutral Criteria

Still, even if the litigation is mostly one-sided, there are benefits, Hurd said.

It’s difficult for courts to employ neutral criteria when it comes to federalism, the panelists acknowledged.

But as courts begin to apply federalist principles to challenged Republican policies, there’s an opportunity for more balanced outcomes across all such litigation. And perhaps an increase in public confidence, too.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com