Democratic attorneys general saw themselves on the front lines of battles with President Trump over issues like the travel ban, Deferred Action for Childhood Arrivals, and the 2020 Census. Now, as President Biden and a Democratic Congress begin to implement their agenda, Republicans are taking up the mantle of legal challenges.
The Trump administration faced 138 multistate lawsuits, a sharp increase from the 78 filed against Barack Obama’s administration during his eight years in office and the 76 against George W. Bush’s administration. Naturally, Democratic attorneys general tell National Journal they anticipate a partnership with the Biden administration, while Republican attorneys general expect to return to their posture during the Obama years. This time, however, AGs in most states are expected to be even more partisan than they were four years ago, and tensions are higher following a spate of lawsuits challenging the validity of the 2020 election .
“We’re very united as we’ve had conversations over the last couple of months since the November election, in preparation for what we saw as Obama 2.0,” Arkansas Attorney General Leslie Rutledge said, citing the number of executive orders Biden has signed in the past month and a half.
Rutledge, who is competing against Sarah Huckabee Sanders for the Republican gubernatorial nomination, is one of many attorneys general who have gone on to seek higher-profile political offices. But as both Democratic and Republican attorneys general have drawn more national attention for their lawsuits against presidential administrations, some current and former AGs believe that the role has trended more partisan over the past several years.
“The position certainly has been elevated,” said Georgia Attorney General Chris Carr, who chairs the Republican Attorneys General Association. “It’s become a much more high-profile position, simply because we have gotten much more involved … in more federal issues, and how they impact our state.”
Wisconsin Attorney General Josh Kaul, who was elected in 2018 and whose mother also served in the same role, said “there’s no question that there has become more of a partisan divide among AGs over time.”
Democratic attorneys general like Dana Nessel in Michigan and Aaron Ford in Nevada were galvanized by Trump’s presidency to seek the office in 2018.
“I talked at great length about how I was determined to use the authority of the state attorney general’s office to fight back vigorously against the Trump administration when his administration committed conduct that was harmful to the residents of my state,” Nessel said. “So I was very clear about that from the beginning, and it was a large part of why I wanted to run for this particular office as opposed to any other office.”
“What was occurring the two years before I was elected attorney general, during the first couple years of the Trump administration, heavily influenced my decision to run for attorney general,” said Ford, who cochairs the Democratic Attorneys General Association.
“Attorneys general … I think are now increasingly recognized as leaders both within the party but also within the realm of our system of checks and balances,” Massachusetts AG Maura Healey, who cochairs DAGA, told National Journal.
But while attorneys general may have raised their reputations fighting against federal regulations from the opposing party, much of the day-to-day work is of a nonpartisan nature. Offices across the country have a long-standing history of working together on issues that cross state lines like consumer protection and crime, resulting in lawsuits, for instance, against pharmaceutical companies that distributed opioids.
“In some respects … it’s an area where there is a lot of bipartisanship compared to what we see in a lot of legislatures, both state and Congress,” Kaul said. “And so there is still quite a bit of people working together across party lines. And I think that that will always be true to some degree, because we are all more effectively able to enforce the laws when we work collectively.”
Kaul and Bill McCollum, the Republican former attorney general of Florida, both pointed out that executive orders are more open to legal challenges than statutes, and so the increased use of presidential executive orders over the past few administrations has naturally led to more lawsuits from AGs.
“It means that there is usually more uncertainty about whether the action is going to be upheld if there’s a court challenge,” Kaul said. “I think the Trump administration in a lot of ways moved that process further forward, because the administration was so willing to, in my view, go beyond what they were permitted to do and to ignore the rule of law.”
Virginia AG Mark Herring, who’s running for his third term this November, described those years as “very contentious.”
“I’ll never forget in our court hearing when we got the first preliminary injunction in the nation on the Muslim ban, sitting in a courtroom in Alexandria, and the Trump administration’s lawyer told the judge, ‘Well, all the president has to do is invoke national security and his actions are unreviewable,’” Herring said. “And I thought to myself, we have a tyrant or an autocrat in the White House now.”
Lee Fisher, a Democrat who served as Ohio’s attorney general in the early ‘90s, also said he believes AG offices have grown more partisan over the past 10-15 years, a trend he attributes to the growing role of the national Democratic and Republican AG associations, which field well-funded challengers.
“I’ve been dismayed at how that has chipped away, I think, at the integrity of the office of state attorney general,” Fisher said. “And I’m not naive enough to think that there isn’t politics involved in every political office. Of course there is. But the least political office in America should be the state attorney general.”
In February, 14 Republican attorneys general sent a letter to the Biden administration protesting its decision to block a construction permit for the Keystone Pipeline, signaling one of the issues that Republican AGs will be rallying against. McCollum said he expects many of Biden’s regulations will be challenged by Republicans in the same way they challenged Obama’s.
While he was serving as his state’s AG during the Obama administration, Texas Gov. Greg Abbott described his job as, “I go into the office. I sue the federal government. And then I go home.” At that point, one of the major issues Republican AGs were suing the Obama administration over was the Affordable Care Act. Right after it was signed into law, McCollum led a group of almost all the Republican AGs to challenge its constitutionality.
“Some of them blame me for starting this trend [toward challenging federal regulations]. But we thought we were right,” McCollum said. “I actually asked [Democratic attorneys general] to join and had conversations with some of them back then. But there’s a real hesitancy to break with the party.”
This partisan divide has only deepened since the 2020 election, when Texas Attorney General Ken Paxton and 17 other Republican AGs tried to contest the election results in Georgia, Michigan, Pennsylvania, and Wisconsin, in a lawsuit that the Supreme Court immediately threw out.
“To have so many other states … that joined in and signed on to his efforts really, really shook me and saddened me greatly,” Nessel said. “I said this to my Democratic colleagues: I don’t know how I’m going to work with these people. Again, I don’t know how I’m going to go to NAAG, the National Association of Attorneys General, and sit next to somebody who has sued my state to try to undermine the voters of the state of Michigan.”
Ford said that the Republican AGs’ response to the election has “ultimately proved to be problematic, from a relationship-building perspective.” After visiting Nevada, Utah’s Republican attorney general, Sean Reyes, said he saw “voting irregularities” in the state, failing to mention any specific allegations of fraud.
“When you have the Utah attorney general literally leaving his state, coming into mine, and arguing that our elections were filled with fraud, that demonstrates a lack of comity that existed beforehand,” Ford said.
So far, Rutledge, a vocal supporter of Trump who joined Paxton’s lawsuit, is the only attorney general to announce a run for another office in 2022, though others like Kansas’s Derek Schmidt have confirmed interest in a run for the governor’s seat.
“I know that I’m running on my own record as the attorney general for the past six years, and asking the voters of Arkansas to elect me as the next governor, not because I say the right things but because we have done the right things and I have a proven record to run on,” Rutledge said.
“There’s a joke that the National Association of Attorney Generals, NAAG, stands for the National Association of aspiring governors,” Fisher said. “There are very few state attorneys general who don’t harbor ambition to run for higher office.”
On one hand, the growing profiles of attorneys general provide a natural boost to higher office. But the nature of the job itself—or as it should ideally be done—complicates efforts to use the office as a launching pad.
“Only one office, by law, is consistently required to take positions that may turn out to be contrary to their own political ideology,” Fisher said. “When you do that, you run the risk of offending people in your own political party, which makes it far more difficult to then win higher office as a result.”