States sue Trump administration at record pace

State attorneys general have filed an unprecedented number of lawsuits against the Trump administration, as Democratic-led states exercise new levers of power to block some of President Trump’s most controversial initiatives.

States have formed coalitions to file 103 multi-state suits against the administration in its first three years, according to data compiled by Paul Nolette, a political scientist at Marquette University. The vast majority of those suits, 96, have been led by Democratic attorneys general.

By contrast, states filed 78 multi-state suits in the eight years of President Obama’s administration, and 76 multi-state suits during President George W. Bush’s eight years in office. Democratic attorneys general sued Trump 40 times in his first year in office alone, more lawsuits than have ever been filed against an administration in a single year.

“Every time this guy breaks the law, we take him to court,” said Xavier Becerra (D), California’s attorney general who has led 31 suits and been party to 25 others. Joining with other states to file suit “adds strength, it certainly adds value, and it shows unity. It demonstrates that the unlawful action that the Trump administration is looking to take impacts more than just one state.”

The attorneys general have sued the Environmental Protection Agency (EPA) more than any other agency in government. All told, the EPA has faced 31 lawsuits over proposals to roll back Obama-era environmental laws or to implement new rules. States have sued the Department of Health and Human Services and the Interior Department about a dozen times each.

Nolette said the new pattern of multi-state legal actions are part of a trend that began during the Obama administration, when Republican-led states began suing at a faster clip. The Obama administration was sued 53 times during his second term in office, twice as many suits as during his first term.

“It has much less to do with the Trump administration itself than it does with the attorneys general and how they’ve realized how effective their lawsuits are and how many incentives they have to bring these lawsuits in the first place,” Nolette said. “This is a more permanent part of the landscape now.”

The Republican-led suits revolved around what the party saw as Obama’s excessive reliance on executive orders once the GOP took control of Congress. Ken Paxton (R), Texas’s attorney general, said there is a big difference between the suits he joined against the Obama administration and the ones Democrats are filing against the Trump team.

“These lawsuits against the Trump administration are just an attempt to implement policies through the courts that voters have rejected at the ballot box,” Paxton said. “The lawsuits attorneys general had to file against the Obama administration were about preserving our constitution and defending the rule of law, while these suits against the Trump administration are based on nothing more than policy disagreements and political posturing.”

But the courts disagree. Democratic attorneys general have won 80 percent of the cases that have come to a conclusion, Nolette found, while about a third are still pending before judges at various levels. By contrast, Republicans were successful in about 60 percent of their suits against the Obama administration. 

“That’s a very high success rate, much higher than most litigants, actually. Even if they ultimately lose, there’s a real benefit to the lawsuit,” Nolette said. “There’s pretty much all upside and not much downside to bringing these suits.”

Even in cases the Trump administration wins, the lawsuits can move policy. A suit challenging the constitutionality of Trump’s travel ban delayed implementation for years and rallied the Democratic base. The Trump administration had to revise the travel ban before the Supreme Court ultimately allowed it to go into effect.

Observers expect a new normal, regardless of whether President Trump wins a second term in November. Bruce Mehlman, a lobbyist in Washington, said the lawsuits are a function of what is becoming a much broader political fight that extends beyond the Beltway.

“This is broader than the Trump era. This reflects an age of empowerment where everybody from activists to CEOs to mayors to attorneys general feel empowered to drive policy, block things they don’t like and champion their own priorities,” Mehlman said. “It’s yet one more arena for policy advocates. Twenty years ago, the fight was in Washington. Today, the fight is in Washington, state capitals, agencies implementing the laws and the courts.”

The Democratic attorneys general have built something of a relationship in recent years, coordinating efforts on conference calls and at the staff level.

“We’ve established pretty strong relationships with many of our attorney colleagues, because they’ve worked together so much,” Becerra said in an interview. “Usually, we find partners who are interested in working on the same issue.”