The Washington PostDemocracy Dies in Darkness

Litigation against executive branch by coalitions of states grows in response to unilateral actions by president and gridlocked Congress

California Attorney General Xavier Becerra, left, discusses the lawsuit the state has filed against the Trump administration’s rules blocking green cards for many immigrants who receive government assistance on Aug. 16.
California Attorney General Xavier Becerra, left, discusses the lawsuit the state has filed against the Trump administration’s rules blocking green cards for many immigrants who receive government assistance on Aug. 16. (Rich Pedroncelli/AP)
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Taking their cue from red states that regularly banded together to sue the Obama administration, Democratic attorneys general began challenging the Trump administration in court the first month President Trump took office, starting with the travel ban.

The litigation by coalition has continued unabated, with at least six multistate lawsuits filed against Trump policies in August alone, most prominently against the president’s attempt to deny green cards and visa extensions to foreign nationals seeking public assistance.

Those August suits brought the total to 87 multistate legal actions in the 31 months since Trump took office, according to a database compiled by Marquette University political scientist Paul Nolette.

The litigant states tend to be the same in most cases, among them California, New York, Washington, Connecticut, Illinois, Hawaii, Vermont, Massachusetts and Colorado, along with the District of Columbia.

The figures surpass the 78 multistate suits against President Barack Obama in eight years and the 76 against President George W. Bush during his two terms, according to Nolette.

The most frequent state litigants against Obama included Texas, Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Louisiana and North Carolina.

The Democratic litigants are finding greater success against Trump than the Republicans did against Obama, said Nolette, with 40 victories and nine losses under their belt, a success rate of 82 percent. Winning, in Nolette’s database, includes completed cases as well as cases still being appealed.

Their most dramatic recent win came when the Supreme Court halted the administration’s plans to add a citizenship question to the 2020 Census.

The figures present only a partial picture of Trump’s record in court as hundreds of cases have been brought by advocacy groups, such as the American Civil Liberties Union, environmental organizations like the Sierra Club and civil rights activists such as Lambda Legal.

Overall, according to a Washington Post count, the Trump administration has been on the losing end of at least 85 federal court decisions, many of which are being appealed.

The GOP attorneys general still have plenty to brag about in their battles against Obama: They chalked up 40 wins and 25 losses, a success rate of about 62 percent, with six cases still pending, Nolette said.

Their highest profile victories were securing an injunction from a Texas judge halting Obama’s deferred 2014 action program (DAPA) designed to protect millions of immigrant parents in the country illegally from being deported, and a ruling from another Texas judge that would effectively wipe out President Obama’s Affordable Care Act.

Nolette said in an interview that he had not yet calculated Bush’s won-lost record but he believed it was about the same as Obama’s.

The proliferation of multistate suits, Nolette said, represents a fundamental shift in the constitutional order.

Presidents, faced with divided government and gridlocked Congresses, have resorted more to unilateral executive decisions and agency action to change policy.

Both are more vulnerable to court challenges than acts of Congress and that encourages states to litigate.

“It’s a good indication of how much the partisan battle has shifted from what ostensibly is supposed to be a democratic institution, Congress, to institutions further outside the public eye,” he said.

Indeed, attorneys general such as California’s Xavier Becerra and New York’s Letitia James, both Democrats, along with Texas’s Ken Paxton, a Republican, have used the litigation to significantly raise their national profiles, taking on roles historically reserved for members of Congress.

Multistate litigation also provides greater opportunity for forum shopping. Despite the protestations of Chief Justice John G. Roberts Jr. (“We do not have Obama judges or Trump judges, Bush judges or Clinton judges”) partisan litigators have good reason to believe they will fare better in judicial circuits with more judges appointed by presidents of their own party.

Lawsuits against Trump administration policies, for example, have thrived in the federal courts within the U.S. Court of Appeals for the 9th Circuit, particularly in California, Montana and Washington, where Democratic appointees have been in the majority for many years, an advantage shrinking as new Trump appointees join their ranks.

Republican attorneys general prefer the 5th Circuit, which includes Texas, where they believe they get more sympathy from the large number of Republican appointees.

They chose Texas for the Affordable Care Act litigation, just as Democrats chose New York and California as the main battlegrounds over the census.