The resistance meets daily on Microsoft Teams.
The country’s 23 Democratic state attorneys general
log on at 4pm ET for a thirty-minute confidential video chat to coordinate
their plans for pushing back against the Trump administration, reported Politico. They share
updates on the seven cases they have moving through federal courts and argue
about whether to treat Elon Musk as a lawful arm of the government or an
uncredentialed interloper to it. They plot where to respond next, leveraging
timezone differences to expand the workday.
The American left has floundered during Trump 2.0. The
mass protests of 2017 have not emerged, and donors to progressive causes are
not giving the way they did then, either. Democratic congressional minorities
have been cowed by Trump’s assertions of executive power, while many of the
governors who stand as their party’s leading figures are cautious about
provoking fights with the president. In confronting Trump, elected officials
have largely yielded to labor unions and advocacy organizations.
Then there are the attorneys general, who see
themselves as the last backstop between the people and the president. Their
multi-state lawsuits have temporarily stopped the president from revoking
birthright citizenship, freezing federal funding and cutting off money for
medical research. This week, they filed their sixth amicus brief in an action
against the Trump administration, with 23 attorneys general signing on to argue
the importance of the Affordable Care Act. The US Department of Justice declined
a request for comment on that suit, or others it is defending.
“Right now in the United States, the Democratic AGs
are the only group of people who are united and working to prevent some of
these unconstitutional actions from continuing,” Hawaii attorney general Anne
Lopez boasted in an interview.
Their work reflects an upgrade from Trump 1.0, when
Democratic state officials collaborated but in an improvised, reactive fashion,
with plaintiffs sometimes coming together with only a few hours’ notice. They
notched key legal victories then, but were driven by caution as they feared
undermining each other’s cases with conflicting rulings in different courts.
This year, the attorneys general are executing on a
plan they worked to develop for a year before Trump’s return to the White
House, according to interviews with more than half of the Democratic attorneys
general, former holders of the office and their staff. Coming together to
respond to Trump’s policy blitzkrieg after it began, they say, would have
represented coming together too late.
For many of them responding to Trump has become a
full-time job, on top of their other constitutional duties. All worry they will
need to ask their legislatures for money and more muscle to keep up their
national work against Trump without compromising the other work they do
investigating Medicaid fraud or suing tobacco companies.
“We talk each and every day these days, and you’d
think we start to get tired of it, but we’ve just grown closer over time,” said
Kathy Jennings, Delaware’s attorney general. “And in the next four years, we’re
going to grow very close.”
The brief bank
Bob Ferguson jotted down notes as his car navigated
the streets of Seattle, the hometown where he worked at a large corporate law
firm before embarking on a political career. Ferguson had attended Democratic
Attorneys General Association meetings all over the country, typically upbeat
events swarmed by lobbyists eager for face time with some of the country’s most
powerful state-level law-enforcement and regulatory officials.
The February 2024 meeting represented a special moment
for Ferguson as he began the final year of his third term as Washington’s
attorney general. He was running for governor and, win or lose, would depart
his office as the country’s last surviving Democratic attorney general from the
start of Trump’s first presidency.
The host state’s attorney general is traditionally
granted a speaking slot at the meeting, and Ferguson wanted to use his to
deliver his colleagues a grave warning: They didn’t know what was coming.
He wandered the stage at the Grand Hyatt as he spoke,
microphone in hand as he evoked the chaotic early months of 2017, when a rookie
president’s stream-of-consciousness policymaking trampled on civil-rights
protections and the separation of powers.
Even though the 2024 election was still nine months
away, Ferguson implored them, it was past time to start preparing for the cases
they would file if Trump returned to office. He recalled the work his office
did throughout 2016, when Ferguson responded to Trump’s campaign-trail
provocation about banning Muslims from entering the United States by prepping a
constitutional challenge, just in case. When Trump did issue such an order a
week into his term, Ferguson’s office was able to file a brief against the policy
within three days.
“Whatever he is saying or articulating on the campaign
trail,” Ferguson told the assembled attorneys, “assume he’s going to do it — no
matter how outlandish it may be — and prepare for that.”
The speech was part pep talk, part lecture on
appellate tactics. The most important guidance Ferguson had to share was about
resources; attorneys general needed to begin now asking their states for the
money to hire more lawyers, he insisted. They had to be prepared for January
20, because the president would be. Last time, Trump’s work was often sloppy,
making for easier arguments. Don’t count on that this time around, he said.
A few attorneys general volunteered immediately to
start doing research, drafting motions and working on arguments. They took
broad issue categories back to their individual states — immigration,
reproductive health, the environment, voting rights — and laid out the criteria
they would use to distribute assignments throughout the year: Who has
bandwidth? Who has expertise? Who is being harmed?
“There was going to be a need for coordinated action,
making sure that we were not caught flat-footed,” said Maine’s Aaron Frey. “It
allowed us to be thinking about what it is that was going to be important for
our states.”
In Sacramento, Rob Bonta had been preparing to take on
more national cases since 2022, when the U.S. Supreme Court overturned Roe
v. Wade. A draft challenge to a potential federal abortion ban was filed in a
“brief bank” that Bonta maintained in anticipation of hypothetical scenarios
his office could one day face.
The brief bank grew after the Seattle meeting.
Thinking in outlines, Bonta and his growing litigation staff worked out the
subheads, the ways Trump could attack under each one: military interventions,
budget maneuvers, revoking federal waivers and pulling payments.
Unlike Ferguson, who had had to speculate about what
Trump’s campaign rhetoric might look like when translated into policy, Bonta
and his colleagues had a roadmap. They studied Project 2025, a sprawling set of
policy proposals from the conservative Heritage Foundation that would
dramatically re-envision the federal government.
The state attorneys general — including from the
District of Columbia — began speaking weekly throughout the summer and fall to
update one another of their progress, using the time to order their priorities
and determine the limitations of their powers.
“I think there was a collective recognition that we
wanted to approach things differently,” said Rhode Island’s Peter Neronha, who
caught the last two years of Trump’s term and has served as attorney general
since. “We knew we would have to come up with a process by which everyone could
and would participate.”
Democratic attorneys general didn’t invent multistate
suits. Bipartisan collaborations have been a staple of attorneys general’s work
going after tobacco companies, opioid manufacturers and social media companies.
Recently they have become a favored tool for state
officials banding together on partisan lines to take on a president of the
other party. Democratic attorneys general from 11 states, Washington DC and two
cities signed onto a Massachusetts-initiated suit against George W. Bush’s
administration over its approach to carbon emissions. Republican attorneys
general from 25 states joined a Florida-led challenge to Barack Obama’s
Affordable Care Act. (Both cases ultimately reached the U.S. Supreme Court.)
Having all the states hop on the same case makes it
easier to show a national impact, and make the case for a national solution,
said David Levine, a professor at UC Law San Francisco. “You don’t run the risk
that you get different outcomes in different courts that need to be litigated
even more,” Levine said.
Even though Democrats recognized the wisdom of joining
forces to oppose Trump in 2017, the 23 members of the party who occupied
attorneys general offices were not well-organized to do so. Sometimes they
banded together by the dozen, sometimes going out alone or in groups of two or
three.
“It was more ad hoc than I think it is today,” said
George Jepsen, Connecticut’s attorney general during the first Trump
presidency.
When Trump issued his ban on travel from seven
majority-Muslim countries, three different lawsuits emerged from attorneys
general. Washington and Minnesota filed a case challenging the first order,
Hawaii followed with a second lawsuit once Trump amended his first travel ban,
while Virginia and New York intervened on behalf of individuals who had been
blocked at airports.
“It was very reactionary and stressful, we were seeing
these orders coming out and trying to get on the phone and figure out what the
heck everybody was going to do, “ said Hawaii’s former Attorney General Doug
Chin.
“The fear was that — and I remember it being expressed
back then — was that we had to think very hard about each one, because we
didn’t want a ruling that would somehow box in everyone else.”
By summer, they had established a framework for
developing multistate suits they could all get behind. They had figured out who
had the most experience in which courts, and which venues could be the best to
file in.
“I guess one of the good things about the summer
slumps,” Maine’s Frey said. “We had time to get ready and figure out how we’re
going to work together, figure out how we can maximize resources.”
Where Project 2025 was specific, they prepped
tailor-made cases that all the states could sign onto. Where it was vague, they
read up on the arguments that had been successful in impeding Trump’s
first-term agenda.
Early work was divided by who could afford to work on
it. In many cases, that meant the heavy lifting fell upon California’s
5,600-person staff and New York’s 2,400, including 700 just as assistant
attorneys general.
Lawyers were polishing a brief on birthright
citizenship even before Trump was sworn in. The states decided to invite San
Francisco to join as a litigant to harken back to Wong Kim Ark, a native of the
city’s Chinatown whose 1898 Supreme Court appeal affirmed that 14th Amendment
applied to anyone born in the United States.
By November, the brief bank was bulging, occupying
ever more time for government lawyers from Augusta to Honolulu. New Jersey
Attorney General Matthew Platkin asked his department’s lawyers if they wanted
to help with pre-election preparation, knowing that their work could be
rendered irrelevant if Kamala Harris ended up victorious.
“I said, ‘This is purely volunteer, nobody has to do
this, we can’t pay you any more,’” he recalled recently. “Over fifty lawyers
signed up not knowing who was going to win that election, because they were so
concerned.”
On Election Night, Bonta emerged from a half-empty
ballroom in a downtown Los Angeles hotel where California Democrats had hoped
to fête their native daughter winning the White House.
Instead, as dejected lawmakers and labor leaders
streamed into the hallway, Bonta’s mind turned to the year’s worth of planning
he had hoped would “gather dust” after a Harris win. He and his colleagues, he
said, had strategized down to the detail of which courts to file in, the
virtues of facing state versus federal judges, and how to ensure their cases
would have standing to take on Trump.
“If he violates the law — as he has said he would, as
Project 2025 says he will,” Bonta said, “then we are ready.”
Time to file
On Inauguration Day, executive orders came flying off
White House shelves by the dozen. They directed the federal government to make
it easier to drill on federal lands, withdraw from international agreements,
end diversity programs, change the legal definition of sex and alter the names
of geographical features.
Among the attorneys general, there was a sense of
shock at the speed with which he moved and how reckless some of the orders
seemed. But they also knew they had spent the past year “trying to map out a
list of areas where we might see massive policy changes and things that are
illegal,” said Nick Brown, who in November was elected to succeed Ferguson as
head of Washington’s attorney general’s office.
They spoke every few hours that day, divvying up
lawsuits by who had standing, who had expertise, who had staff. If a brief had
already been started, what’s the latest? Where would they file? Who is writing
the press release template?
“As you can imagine, everybody is the chief legal
officer of their respective state, so everybody is used to being in charge,”
said Illinois Attorney General Kwame Raoul. “When you’re working collectively
on something there’s a desire for everyone to have a leadership role, but you
have to put that aside sometimes in the interest of working together.”
One day later, they filed their first two cases. In
Massachusetts, 19 states delivered their well-planned response to a Trump order
denying citizenship to the children of illegal immigrants.
It springboarded off cases from the last Trump
administration, where attorneys general successfully stopped Trump’s attempts
to change census and asylum policies by arguing it was a breach of the
Administrative Procedure Act.
“They had a way to articulate what the state’s
interest was, because that’s the main hurdle you have to get over,” said
Levine, who now teaches the case in his law-school classes. “You can’t just sue
because you don’t like what he’s doing.”
Hours after that, Oregon, Arizona and Illinois filed their own suit in Washington, which would later include three pregnant mothers who feared their children would be born stateless, another way to show the harm of the order.
“It wasn’t any strategic thing,” said Illinois’
Attorney General Kwame Raoul, who filed in the West Coast group. “It happens
sometimes, where one AG may want to file in their state for a particular reason
and another group may do it elsewhere. We’re trying as much as possible to
minimize that and work together.”
On January 27, Trump’s Office of Management and Budget
issued a temporary government-wide funding freeze across the board, sending
state and local programs into chaos. The attorneys general had not predicted
the memo’s specifics, but had spent the prior year getting language ready for
when Trump’s actions inevitably bumped up against Congress’s power of the
purse.
“We had to get that filed quickly, so we leveraged the
West Coast offices,” said Rhode Island’s Neronha. “It’s only a 24-hour day, but
when you’re working overnight, you get three extra hours when you can get the
West Coast teams online and our folks can get a little sleep.”
A day later, all 23 states filed a suit in Rhode
Island to block the memo’s implementation, using the same separation-of-powers
argument successful in 2020 when the Ninth Circuit Court of Appeals prevented
Trump from redirecting Pentagon funds for border-wall construction. Only
Congress, the attorney generals’ brief argued, had the power to appropriate
money.
Democratic state officials were not the only
plaintiffs emerging to sue the new president. The AFL-CIO challenged Trump’s
changes to the civil service, the ACLU to protect access to gender-affirming
care, and the City of Baltimore over the shuttering of the Consumer Financial
Protection Bureau. The attorneys general followed days after each suit with
supportive amicus briefs signed by 23 states.
But states are in a unique position unavailable to
labor unions and outside groups. Their suits are essentially class-actions on
behalf of all their constituents, informed by the full range of concrete harms
only a state government is positioned to document. On February 10, 22 of the
states sued over cuts to the National Institutes of Health. It was filed in
Massachusetts, but is filled with details on which programs at the University
of Wisconsin are being the most impacted.
“Making sure that information is being included and
considered as part of these cases is what I see as sort of a key role for us
and for other states,“ said Wisconsin’s Attorney General Josh Kaul.
Ferguson and other veterans of the Trump 1.0 suits had
warned their successors to gird for chaos. Few of them, however, expected that
chaos would come at the hands of a techo-mogul with a hyperactive social media
feed and seemingly unfettered access to the inner workings of the federal
government.
“Who could predict that this billionaire, the richest
man in the world, comes in out of nowhere and gets the blessing of the
president to go into our institutions and invade people’s privacy?” Jennings
told reporters in February.
Pushing back on the Department of Government
Efficiency’s actions required the attorneys-general to agree on a shared view
of Elon Musk. Should they treat him as a mouthpiece for the president, giving
them another way to go after Trump? Or was Musk acting in a way that violated
the law himself?
By mid-February, the states had decided to work both
angles at once. One coalition led by New York sued Trump, accusing the
Department of Government Efficiency of violating citizens’ privacy. Days later,
a second group led by New Mexico went after Musk himself, for wielding too much
power for someone who was never confirmed by the Senate.
“It’s important that individuals understand that there
are co-equal branches of law that need to be respected, and that states, again,
have a unique responsibility to ensure that the Constitution is followed,” New
York attorney general Letitia James said ahead of a hearing in the privacy
case.
The attorneys general were encouraged to see Musk’s
influence animating the general public in a way few other issues had in the
flood-the-zone early days of Trump 2.0. Jennings said her office received more
constituent phone calls voicing concern about DOGE than anything else in her
six-year tenure.
“You ask the AGs and they’re going to tell you the
same thing,” she said. “Our phones were flooded. This hit home to people.”
John Suthers, who as Colorado’s Republican attorney
general joined in on a challenge to Obamacare while saying no to other
multistate suits, said in their rush to file anti-Trump lawsuits Democrats
could be falling victim to legal groupthink.
“A lot of these folks aren’t being good lawyers as
opposed to good politicians,” Suthers said. “It’s probably great politics to be
suing the president for waking up in the morning but it’s certainly not good
law.”
The zoom where it happens
High above the schlocky tourist traps of Hollywood
Boulevard, the Democratic Attorneys General Association convened this month for
its first in-person confab since Trump’s inauguration. Attendees reveled in
their early legal victories while navigating a marathon multi-day schedule of
sessions on weighty topics like how to respond if Trump defied a court order.
Amid bleak talk of constitutional crises, the
attendees’ mood was lightened by the easy familiarity of comrades that have
bonded in trench warfare. They greeted each other with inscrutable inside jokes
— which they declined to explain to an inquiring reporter — and praised their
lesser-known talents, like the joke-telling skills of Michigan’s Dana Nessel, a
former stand-up comedian, or the singing voice of Nevada’s Aaron Ford.
The good vibes came, in part, from seeing their
colleagues out of the confines of a Zoom screen where they began meeting daily
after Trump’s inauguration. Their staffs talk every day, as well, clearing up
disagreements and fine-tuning strategy, to keep the calls from running over
their scheduled thirty minutes. (The participants have a “common interest
agreement,” where everything that is said is privileged and confidential.
Outside groups, including those whose cases are backed by the states, are not invited
to join.)
But there are fears nationwide about burning staff
out, and sharing time and resources to avoid it. Behind every 50-page brief
that makes it to federal court are hours and hours of time with lawyers and
legal professionals to draft and research. Outside firms that were eager to
volunteer pro-bono hours during Trump’s first term have largely kept their
distance from the states’ efforts this time around.
Smaller states are expanding their operations to play
a larger role in the litigation. In Olympia, the 850-lawyer staff is 50 percent
bigger than it was when Ferguson started; he had added a civil rights division,
environmental protection division and a complex litigation division to his
office. In Annapolis, a new six-person “federal accountability unit” has been
launched.
“The cavalry is on the way,” said Maryland Attorney
General Anthony Brown. “I anticipate that Maryland will be taking a leadership
role on more cases as soon as we have the bandwidth.”
To mount his suits, California sent Bonta an extra $25
million. Rhode Island’s Legislature gave Neronha more money to staff up.
Attorneys general in Hawaii, Connecticut and elsewhere are hoping their
lawmakers will tap state budgets, too.
“There’s no question our resources are being taxed,
I’ve asked our Legislature for more,” said Colorado Attorney General Phil
Weiser.
But it’s only the beginning. For now the attorneys
general will keep trying to hire more lawyers, and go about the business of
their states while they try to match each executive action they can with a suit
of their own. They’re tending to the drafts in their brief banks but trying to
play it close to the chest.
“So I think that preparation paid off,” said Ferguson,
now Washington’s governor. “I think that that proved to be time well spent,
because they’ve been able to, at this point, match the pace of the
administration.”
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