What to expect from state attorneys general during a Biden administration

With partisan fever boiling in the 2010 midterms, just two years into the Obama presidency, a new brand of state attorneys general (AGs) came to power on the promise to check an ever-expanding federal leviathan. That year, a whopping six new Republican attorneys general won — and with their victories came a wave of political lawsuits, posturing and a deepening partisan divide.

No longer content to just serve as their state’s chief legal officer, investigative powerhouse, consumer protection arbiter and enforcer, prosecutor and policy advocate, state AGs filed an onslaught of lawsuits against the new president’s administration on everything from hot button issues like health care and the environment to consumer protection. These lawsuits raised the profile of the attorneys general and gave new meaning to AG: aspiring governor, or even future senator and president.  

In 2016, with the election of President Trump, Democratic AGs similarly initiated their own litigation against the new president. In addition to the policy areas litigated during the Obama administration, cannabis, immigration and education were also the subject of lawsuits, and federal district court judges occasionally granted nationwide injunctions, stymieing the Trump administration on certain policy objectives. 

Things have come full circle in 2020, with President-elect Joe Biden expected to face 26 Republican state attorneys general. Many of these GOP AGs are eager to challenge the new administration on issues they believe infringe on their respective state’s rights. Health care (expanded/revised Affordable Care Act, the cost of prescriptions), the environment (air quality, water quality, climate change), labor (franchise liability and gig workers) and consumer issues will be just the start. With an even higher level of hyper-partisanship and more than 65 percent of voters having cast a ballot in the 2020 election, legislative compromise seems an even uglier word in Congress. 

Numerous issues will immediately come to the forefront, both in Congress and state legislatures. The state attorneys general will be ready to either support or oppose these very complex issues depending on party politics. 

A few of these issues are as follows:

1. Allegations of disinformation, censorship and privacy concerns among social media platforms, to include potentially revising Section 230 of the Communications Decency Act. (This area may be one of the few examples of a strong non-partisan interest.)
2. Changes in our state and federal election laws, to include voter registration, mail-in voting, advance voting and recounts.
3. Similar to the Obama administration, an expanded role for the Environmental Protection Agency and the Consumer Financial Protection Bureau.
4. Cybersecurity and data privacy issues.

One of the main effects of a divided Congress is the increasing power of state attorneys general. Litigation against new regulatory regimes and federal overreach are enticing to many of these GOP chief legal officers. Unlike most private litigants, state attorneys general have been afforded broad standing to bring suits on behalf of their residents. While suits brought by numerous state AGs are perceived to be much more effective than when brought by a single AG, one state AG has the authority to bring such litigation. AGs may not get as much attention at home as their governors, but federal litigation brings much attention to them. Remember, our vice president-elect was California’s attorney general four years ago.

Businesses will be nervous, irrespective of the outcome of Georgia’s two run-off Senate elections on January 5. Financial services, insurance companies, health care, energy, agriculture and construction are just some of the sectors that are very concerned about regulatory roadblocks that will potentially harm their industry. Stay tuned.

Samuel S. Olens is a member of Dentons’ Public Policy practice and was twice elected attorney general of Georgia. His practice focuses on state attorneys general and local government affairs matters.

Thurbert Baker co-leads Dentons’ US State Attorneys General practice and served as the attorney general for the State of Georgia for 13 years under three governors. His practice focuses on corporate compliance and investigations, complex state legal and legislative matters, public policy and regulatory affairs, multi-state litigation, public sector procurements and regulatory matters.