With Washington, D.C., in turmoil during the opening weeks of the Trump administration, state attorneys general have emerged as the vanguard of resistance to the new presidency.
In blue states like Massachusetts, where upheaval against President Trump has reached fevered heights, top prosecutors have found constitutional grounds and a political imperative to challenge sweeping changes to federal policy. On immigration, the environment, and women’s rights, a long line has formed to confront Trump in the courts.
“We started this conversation immediately after the election, knowing that we were going to have a lot on our plate,” said Massachusetts Attorney General Maura Healey, a Democrat.
The events that have unfolded in recent days over Trump’s immigration order demonstrate what can happen when multiple attorneys general pursue the same cause.
A judge in Boston on Friday ruled in favor of the Trump administration in a case that Healey joined and upheld the immigration ban, but a Seattle judge, in a separate case filed by Washington state’s attorney general, halted the ban in a broader ruling that affected the entire country.
“Based on what we’ve seen so far, there’s going to be a really significant role for our offices,” Healey said, singling out Trump’s executive order limiting immigration from seven majority-Muslim countries. “It’s scary when the president acts in a way that is so unconstitutional.”
Healey and others have already taken legal action in several cases challenging Trump. She has joined seven other state attorneys general in a case seeking to preserve a program to reduce greenhouse gas emissions. She has joined 16 others in a case defending the Consumer Financial Protection Bureau. She is leading a coalition defending former president Barack Obama’s decision to terminate an accrediting agency that she says facilitated the abuse of student borrowers by predatory, for-profit schools.
More recently, Healey joined the local ACLU lawsuit challenging Trump’s immigration order suspending travel for citizens of seven banned countries.
And on Monday she joined with 16 other attorneys general to file a friend of the court brief to echo their support for the Washington state immigration suit and a similar one in Minnesota.
The power of an attorney general depends on the law of each state, and some take a more activist role than others. Because Massachusetts laws grant the office some of the broadest powers in the country, the state has often led progressive national suits such as this one.
“To the extent that President Trump and his administration act in ways that are unconstitutional, it’s going to be up to the state attorneys general, and there’s certainly been a precedent for that over the years,” Healey said.
Washington state Attorney General Bob Ferguson, whose case was victorious Friday, was the first to challenge Trump’s immigration order.
Eric Schneiderman has also filed suit against it in New York, another state that grants its attorney general broad powers. He and Healey coordinate closely.
“The AGs consider themselves a thin blue line against federal overreach, there’s no question about it,” said James Tierney, the former attorney general of Maine who runs a blog about state attorneys general.
There are 23 Democratic state attorneys general, including the District of Columbia, and 27 Republicans. Alaska’s attorney general is an independent.
About 10 Democratic AGs, grouped on the east and west coasts, are known to take a more activist role in suing the federal government, Tierney said. Some others would be more active but Republican Legislatures have curtailed their power and resources.
Tierney advises many of the Democrats coordinating their efforts against Trump. The group is braced to file more suits in coming months.
“It’s actually an essential part of federalism in that attorneys general will hold the president’s feet to the fire,” Tierney said.
Former Massachusetts attorney general Scott Harshbarger, who in the 1990’s was one of the first attorneys general to sue the tobacco industry for manufacturing a product that caused death and disease when used as instructed, applauded the activism. “The state attorneys general do offer a significant, independent beacon of hope,” he said.
These days it is common for state attorneys general to challenge presidential administrations on federal policies, and during Democratic presidencies, the pendulum swings in the other direction among GOP attorneys general.
During Obama’s tenure, for instance, Republican attorneys generals sued his administration over everything from the Affordable Care Act to his 2014 immigration order, which granted temporary reprieve to undocumented immigrants.
State attorneys general didn’t always view themselves as having this activist role on the national stage.
That changed in the 1980s under President Ronald Reagan, when the federal government focused less on issues like civil rights, and environmental and consumer protections, said Harshbarger, who served as Massachusetts attorney general from 1991 to 1999.
“Because the federal justice department stepped back and/or focused on other things, the state attorneys general became the proactive force,” Harshbarger said.
Harshbarger was a disciple of Frank Bellotti, the Massachusetts attorney general credited with transforming the office from a group of part-time lawyers who represented state agencies into an aggressive machine that looked out for citizens’ interest.
“It’s become a much more activist office now than it was when I took office in 1974,” Bellotti said.
His efforts began with a case against the federal government for taxing imported crude oil. They lost in the Supreme Court, but as a result Congress passed laws that rolled back the tax.
“I just felt it was such a powerful office and you didn’t have that many resources,” Bellotti said, so he focused on issues that had the greatest impact on people’s lives.
At the same time, many national corporations and others who want to protect against state lawsuits have tried to preempt such attacks by getting federal approval for whatever they are doing.
That came into play in Massachusetts in 2014 when Governor Deval Patrick announced he would ban Zohydro, a powerful and highly addictive painkiller. In court, an irritated judge sided with the makers of Zohydro, saying that because the federal Food and Drug Administration had already approved the drug a state could not ban it.
“I think, frankly, the governor is out of line on this,” US District Court Judge Rya W. Zobel said from the bench during a hearing on the matter.
State-level politicians, though, appear eager to test the bonds of federalism in the Trump era.
Healey, who reiterated Wednesday that she plans to run for a second term rather than seek the governorship, said, “I’d expect that you’ll continue to see the state attorneys general on the front line.”