“We’re standing up and fighting back,” said Missouri Attorney General Eric Schmitt, who is leading a coalition of states suing Biden over an executive order pertaining to the “social cost” of greenhouse gas emissions.
Republican attorneys general, said Schmitt, vice chair of the Republican Attorneys General Association, “play a very important role in checking a very aggressive administrative state that’s been unleashed.”
Only two months into Biden’s term, the breadth of challenges from Republican-led states to the president’s agenda is already expansive, touching on everything from tax policy to climate change and abortion. Five Republican attorneys general interjected themselves into his appointment process, urging Biden to withdraw his nominee for the No. 3 position at the Justice Department, Vanita Gupta.
And the litigation is likely just beginning, as Biden and the Democratic-controlled Congress unwind Trump-era policies and begin to implement their own.
It’s “the rise of the Republican AGs as a counterweight to the Biden administration’s overreach,” said Mark Weaver, a Republican strategist and former deputy attorney general of Ohio. “This is the natural tension and the balance of power, right? Leaders in government will use whatever levers of power are available to them to advance their policy goals. And state Republican attorneys general have the ability to bring lawsuits. And that’s what they’re doing.”
State attorneys general have traditionally assumed a more prominent position in Washington when a president of the other party is in power. Texas Gov. Greg Abbott, when he was state attorney general, sued the Obama administration so frequently that he said in 2013, “I go into the office in the morning. I sue Barack Obama, and then I go home.”
Years later, Democrats returned the favor. Former California Attorney General — and newly confirmed Health and Human Services Secretary — Xavier Becerra alone filed no fewer than 100 lawsuits against the Trump administration on issues ranging from health care and immigration to climate change and gun control.
The challenges Republicans are now mounting against Biden represent “the other side of the coin from the Democrats bringing literally hundreds of lawsuits against the Trump administration, which in turn built on a trend” of Republicans suing Obama, said Rob McKenna, the former Republican attorney general of Washington and former president of the National Association of Attorneys General.
He said one reason for the proliferation of such litigation is that successive administrations are relying increasingly on the use of executive orders, “so they leave themselves open to legal challenges” about the extent of executive power.
“On the political side,” McKenna said, “the base of each party, Democratic and Republican, expects their attorney general to step up and fight for issues that the base believes in. … There’s a higher expectation now that the AGs are going to be active, and if you don’t step up, you’re likely to come under fire from people in your own party.”
That was more obvious than ever in the aftermath of the November election. Following then-President Donald Trump’s defeat, it was Texas’ embattled attorney general, Ken Paxton, who led a failed effort by Republican-led states to overturn the election in several battleground states — though not his own. The attorney general of Utah, Sean Reyes, crossed state borders to advance Trump’s baseless claims of voter fraud in Nevada. And an arm of the Republican Attorneys General Association sent robocalls encouraging people to attend the “Stop the Steal” rally at the Capitol on Jan. 6. RAGA officials distanced themselves from the call and condemned the ensuing riot.
At least one Republican state attorney general who declined to join the effort to overturn the election, Idaho’s Lawrence Wasden, has faced recriminations in his home state, with Republican lawmakers there attempting to curb his power.
To Democrats, the involvement of Republican attorneys general in the election’s aftermath was something more pernicious than typical partisan warfare. Rather, it was “something that we just haven’t seen before,” said Maura Healey, the Massachusetts attorney general and co-chair of the Democratic Attorneys General Association.
“There can be fights,” said Healey, who was a leader of the Democratic attorneys general’s resistance to Trump. “There can be challenges to figuring out the scope or the extent of federal authority over a state, for example, right? And there may be a Republican philosophy around that and a Democratic philosophy around that. So, we’re used to those battles, OK? But this is something different.”
Now, she said, “Unfortunately, it seems … that there are certain Republican AGs who seem hell-bent on trying to stop the Biden and Harris administration from moving forward, and I think it’s unfortunate.”
Alabama’s Republican attorney general, Steve Marshall, said the extent of Republicans’ legal challenges against Biden will depend on how aggressive his administration is, largely around executive actions. But GOP attorneys general will not only be attempting to block elements of Biden’s agenda, he said. They will also be seeking to preserve Trump-era policies that Democrats sued to undo — and that Republican attorneys general will now intervene in an effort to preserve.
How much litigation Republicans ultimately file, Marshall said, “really depends on how aggressive this administration wants to get in pushing the envelope relating to the separation of powers” and executive authority.
McKenna, like other attorneys general and former attorneys general of both parties, noted that attorneys general continue to work across the aisle on significant issues such as consumer protection, big tech and the opioid epidemic. Jim Hood, the former Democratic attorney general of Mississippi and a former president of the National Association of Attorneys General, said on those types of issues, “we have traditionally reached across party lines, still do to this day, and will in the future.”
Iowa’s Tom Miller, a Democrat and the nation’s longest serving attorney general, agreed. He said the Republicans’ more partisan filings amount to “quite a few lawsuits in a short time.” But he said it “remains to be seen” if the GOP’s overall efforts will become more expansive than his own party’s were during the Trump era.
It’s also not clear how significant a problem the Republican attorneys general will be for Biden, he said.
Miller, who endorsed Biden ahead of the Iowa caucuses last year, said Biden is assembling an “incredible” Justice Department with Attorney General Merrick Garland.
Of the Republican lawsuits, Miller said, “He’s going to be well represented in court. So, yeah, as president he has a lot bigger concerns than that.”