While much of the nation focused on the presidential contest between Donald Trump and Joe Biden, voters in 10 states also witnessed attorney general races. The Democrats saw all five of their incumbent candidates win re-election, while the Republicans did equally well by re-electing incumbents in three states and electing new attorneys general in Montana and Indiana, where the GOP incumbent was not seeking re-election. So, there was no change in the nationwide split. Republicans continue to hold the attorney general position in 26 states, while Democrats hold the post in 24 states plus the District of Columbia.
While their numbers have not changed, what will change is the role played by these two groups of state attorneys general with respect to the administration in Washington. Over the years, state attorneys general have rarely been shy about filing lawsuits to protect what they view as the interests of their citizens. More recently, however, state attorneys general of both parties have taken an increasingly broad view of the types of issues that merit their official involvement. As a result, states have filed lawsuits on issues that previously might have been left to private litigants or to the ordinary channels of the political process.
As this article will explain, state attorneys general have frequently aligned themselves according to political party on different sides of litigation involving major issues of public policy. Even so, it should be noted at the outset that they are a remarkably collegial group, often finding ways to work together on matters where they can find common ground. It is an example that others would do well to emulate.
As for their differences, starting in the Obama years, Republican attorneys general coalesced to bring legal challenges against a variety of statutes, regulations, and executive orders emanating from the federal government. Decrying attacks on the “rule of law,” they sued to stop what they viewed as overreaching on a variety of fronts. Prominent among these lawsuits was their attack on the Affordable Care Act (commonly known as “Obamacare”), which ended with mixed results in the U.S. Supreme Court. While the Court upheld the controversial “individual mandate” to buy health insurance (on pain of paying a tax), it struck down a draconian provision under which the federal government could withdraw Medicaid funding from states not choosing to expand their state Medicaid programs. [1]
The overwhelming majority of lawsuits filed by the Republican attorneys general challenged actions by federal agencies or executive orders issued by President Obama. Among other issues, these challenges successfully halted President Obama’s key climate change initiatives, including the Clean Power Plan [2] and the Clean Water Rule, [3] portions of President Obama’s immigration and deferred deportation policies (Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)), [4] and a proposal that would have required public schools to allow access to bathrooms and locker rooms on the basis of “gender identity.” [5]
During the Trump administration, the shoe was on the other foot, and it was the Democratic attorneys general who complained about violations of the “rule of law,” suing the Trump administration 138 times in the last four years — doubling the actions filed against the Obama administration during its eight-year span. [6] For example, these Democratic lawsuits temporarily halted multiple iterations of Trump’s so-called “Travel Ban” [7] and battled the “zero tolerance” immigration policy that caused family separations, resulting in a nationwide order to reunite all children with their parents within 30 days. [8] More recently, Democratic attorneys general successfully sued the U.S. Postal Service to stop and reverse operational changes that the attorneys general alleged would slow down mail during the 2020 election. [9]
I. Expected Actions by Republican Attorneys General
Now, with the White House coming back into Democratic hands, the roles of state attorneys general are expected to reverse again, with the Republican attorneys general challenging the Biden administration in court. And while the inauguration is still weeks away, it is not too soon to offer some general observations:
First, while court cases obviously must await the actual adoption of policies and statutes provoking objections, it is foreseeable in some areas where these disputes will likely arise. Health care, energy, and the environment denote areas that have divided the two parties in recent years, and they are likely to do so again in the next four years. Additionally, the media has indicated that the Biden administration is already considering actions related to labor (.e.g., a minimum wage increase), [10] and challenges can be expected, especially if the administration acts through executive orders. Potential executive orders regarding Covid-19, such as a national mask mandate or “lockdowns” that unfairly impact houses of worship, may also draw lawsuits from Republican attorneys general.
Second, the ability to bring plausible legal challenges depends in part on the mechanism used by the incumbent administration to advance its agenda. Challenges to statutes require a constitutional argument, making them more difficult to bring than challenges to agency...
