“We are standing up and fighting,” said Missouri Attorney General Eric Schmitt, who leads a coalition of states that sue Biden for an executive order regarding the “social cost” of greenhouse gas emissions.
Republican Attorneys General, said Schmitt, vice president of the Association of Republican Attorneys General, “play a very important role in verifying a very aggressive administrative state that is being unleashed.”
Just two months after the start of Biden’s term, the range of challenges from Republican-led states to the president’s agenda is already extensive, covering everything from tax policy to climate change and abortion. Five Republican attorney generals have meddled in his nomination process, urging Biden to withdraw his nominee for the Justice Department’s third post, Vanita Gupta.
And the litigation is probably just beginning, as Biden and the Democratic-controlled Congress unfold the policies of the Trump era and begin to implement their own.
It is “the rise of Republican AGs as a counterweight to the Biden government’s exaggeration,” said Mark Weaver, a Republican strategist and former Ohio deputy attorney general. “This is the natural tension and balance of power, right? Government leaders will use every lever of power available to advance their political goals. And the state’s Republican attorney generals have the ability to file lawsuits. And that is what they are doing ”.
State Attorney Generals traditionally assume a more prominent position in Washington when a president of the other party is in power. Texas Governor Greg Abbott, when he was Attorney General for the state, sued the Obama administration so often that he said in 2013: “I’m going to the office in the morning. I sue Barack Obama and then I go home. “
Years later, the Democrats returned the favor. Former California Attorney General – and newly confirmed Secretary of Health and Human Services – alone, Xavier Becerra has filed no less than 100 lawsuits against the Trump administration on issues ranging from health care and immigration to climate change and control of weapons.
The challenges that Republicans are now raising against Biden represent “the other side of the Democrats’ coin, bringing literally hundreds of lawsuits against the Trump administration, which in turn was based on a trend” of Republicans suing Obama, said Rob McKenna, the former Washington Republican attorney general and former president of the National Association of Attorneys General.
He said that one of the reasons for the proliferation of such disputes is that successive administrations are increasingly relying on the use of executive orders, “so they leave themselves open to legal challenges” over the extension of executive power.
“On the political side,” said McKenna, “the base of each party, Democratic and Republican, expects its attorney general to come forward and fight for issues the base believes in. … There is a greater expectation now that the GAs will be active and, if they do not appear, they are likely to be attacked by people from their own party.
This was more obvious than ever after the November election. After the defeat of then President Donald Trump, it was Texas Attorney General Ken Paxton who led a failed effort by Republican-led states to overturn the election in several battlefield states – though not his. Utah Attorney General Sean Reyes crossed state borders to advance Trump’s baseless allegations about electoral fraud in Nevada. And an arm of the Association of Republican Attorneys General sent automatic calls encouraging people to attend the “Stop the Theft” rally on Capitol Hill on January 6. RAGA officials distanced themselves from the call and condemned the ensuing riot.
At least one Republican attorney general who refused to join the effort to overturn the election, Lawrence Wasden of Idaho, faced recriminations in his home state, with Republican lawmakers trying to restrict his power.
For Democrats, the involvement of Republican attorney generals in the post-election period was more pernicious than the typical party war. Instead, it was “something we just haven’t seen before,” said Maura Healey, Massachusetts attorney general and co-chair of the Association of Democratic Attorneys General.
“There may be fights,” said Healey, who was a leader of the Democratic attorney general’s resistance to Trump. “There may be challenges to discovering the scope or extent of federal authority over a state, for example, right? And there may be a republican philosophy around it and a democratic philosophy around it. So, we’re used to these battles, okay? But this is something different. “
Now, she said, “Unfortunately, it seems … that there are certain Republican AGs who seem stubborn in trying to prevent the Biden and Harris government from moving forward, and I think it’s unfortunate.”
Alabama Republican Attorney General Steve Marshall said the extent of Republicans’ legal challenges to Biden will depend on how aggressive his government is, particularly around executive actions. But Republican attorney generals will not just try to block elements of Biden’s agenda, he said. They will also seek to preserve the Trump-era policies that Democrats sued to undo – and that Republican attorney generals will now intervene in an effort to preserve them.