Nearly every week since Inauguration Day, Democratic state attorneys general have taken some action challenging the Trump administration.
This activism is neither new nor confined to one political party. Over the past 20 years, state AGs have altered the balance of power between the states and the federal government — what is often called “our federalism.”
Is this shift just further proof that partisan politics has won the day?
Not really.
{mosads}Rather, it’s a welcome development, strengthening the system of checks and balances that makes our democracy strong.
AGs are the chief law enforcement officers in their states. They have broad discretion to bring cases enforcing the state and federal constitutions, state laws, and some federal laws.
And they’re well-positioned for national influence: they often have broad rights to bring a legal action, they have significant resources, and they carry the prestige of their office.
In the last several months, Democratic AGs have not hesitated to exert their power. On consumer protection, they’ve joined a lawsuit to preserve Obama-era rules protecting student borrowers.
On the environment, they’ve defended the Clean Power Plan and challenged the Environmental Protection Agency for failing to curb harmful pesticides. On healthcare, they’ve backed stable funding for the Affordable Care Act. On immigration, they’ve frozen the president’s travel ban.
And recently they challenged Trump’s business holdings as a violation of the Emoluments Clause of the U.S. Constitution.
State AGs first grabbed national attention in the tobacco settlement of the late 1990s, demonstrating their collective power. In the years leading up to 2008, when Americans were unaware of the coming economic crisis, a small band of state AGs, mostly Democratic, brought major actions against predatory lenders when federal enforcers refused to act.
Then during the Obama presidency, Republican AGs wrote the game plan that their Democratic counterparts are now following: using the courts to challenge the president’s actions on financial regulation, immigration, voting rights, climate change and other environmental issues.
State AGs play a more robust role on national policy than ever before.
Is this trend one more exhibit in the compelling case that partisan politics has won the day?
Although the exercise of AG power is subject to abuse, and the need for campaign finance transparency is more important than ever, on the whole this trend is neither surprising nor worrisome.
To the contrary, American democracy is stronger because of it.
It’s true that for most of American history the state AG was an obscure actor who reviewed government contracts, advised agencies and defended the state, but did not employ the law to pursue policy goals — and certainly not at the national level.
It’s also true that after the tobacco settlement, political parties became far more interested in the office. The Republican Attorneys General Association (RAGA) launched in 1999 and its partisan counterpart, the Democratic Attorneys General Association (DAGA), followed in 2002. Earlier this year RAGA members voted to abandon their long standing gentleman’s agreement with DAGA not to target each other’s incumbents.
But the charge of politicization suggests something improper, and that charge doesn’t stick. First, the state AG in the vast majority of states is political by design.
Forty-three states select their attorney general by popular election, meaning the AG is subject to the same political pressures as the governor or any other elected official. We should hardly be surprised that state AGs might react to these pressures.
Second, the lawsuits at issue are efforts to secure the rule of law and, at a deeper level, reflect a fundamental clash of values.
The AGs of Washington, Virginia and Hawaii who have challenged Trump’s travel ban argue that it violates bedrock constitutional commitments to equal protection, due process and against the favoring of one religious tradition over another.
If all the critics mean by “politicization” is that the issues represented by these lawsuits are controversial, than the charge has lost its bite.
Third, and last, state AGs are providing a critical check on presidential power, which matters regardless which party holds the Oval Office.
Moreover, this check is all the more important when Washington is under single-party rule, as it is now.
State AGs are rising and their ascent represents the genius of our federalism.
Mark Totten is on the law faculty at Michigan State University College of Law. He’s a former attorney at the U.S. Department of Justice and former federal prosecutor in Michigan.
The views expressed by contributors are their own and are not the views of The Hill.