A federal judge in Texas made waves last month when he issued an injunction blocking a key part of President Obama’s executive actions on immigration. It remains to be seen whether the lawsuit, brought by former Texas attorney general (now governor) Greg Abbott and several of his colleagues in other states, will be more than a temporary setback for the program. Regardless of the outcome, however, the lawsuit illustrates an important, and likely durable, feature of contemporary American politics: the increasing, and increasingly national, political activism of state attorneys general.
Like-minded AGs are increasingly working together. In some cases, as with immigration, they are directly challenging the federal government. The Obama administration has faced AG challenges to many of its policy priorities, including the Affordable Care Act, various environmental regulations and the Dodd-Frank financial law.
But the federal government is not the only target. AGs have also targeted national corporations ranging from Google to the nation’s largest banks. AG-led lawsuits have become a crucial part of the American regulatory landscape, particularly since their resolution often involves millions (even billions) in fines and new regulatory requirements for the targeted industries. The graph below, drawn from my research on multistate litigation, shows the increasing prevalence of coordinated AG activism:
AG activism is not only more common, it is increasingly consequential in shaping national policy. Among the most prominent recent suits was the multistate challenge to the Affordable Care Act (ACA), which began only minutes after Obama signed it into law. While failing to overturn the law in full, the AGs’ lawsuit successfully granted states the right to opt out of the ACA’s Medicaid expansion. Several AGs have since challenged other aspects of the ACA, including the federal subsidies at issue before the Supreme Court on Wednesday.
However, AG activism has served not just to constrain government but frequently to expand it as well. During George W. Bush’s presidency, AGs frequently sued the federal government to force it to take stronger efforts to protect citizens and the environment. One lawsuit culminated in the Supreme Court’s 2007 decision in Massachusetts v. EPA, which effectively forced the Environmental Protection Agency to regulate greenhouse gases.
Throughout the Bush and Obama years, multistate litigation also served to expand government oversight of major industries. For example, AGs spearheaded negotiations on the $26 billion settlement with five national banks that sought to hold the banks accountable for alleged foreclosure abuses. AGs have also made “Big Pharma” a frequent target, using lawsuits to reform a variety of pharmaceutical industry practices.
Is the increasing influence of AGs a positive development? On the one hand, AG activism can serve to spur policy change in an era of intense gridlock in our national governing institutions. As Justice Louis Brandeis famously observed: “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” In one sense, contemporary AGs are the latest example of these laboratories of democracy in action.
On the other hand, AG activism raises several important questions about democratic accountability. Unlike self-contained regulatory experiments that pose no “risk to the rest of the country,” contemporary AG activism has self-consciously sought to reshape national policy — whether through lawsuits against the federal government or national settlements with major industries. Citizens affected by the actions of another state’s AG have little recourse to respond.
Another problem arises from the fact that, unlike the federal government, most states divide executive power between independently elected executive officials. When Alexander Hamilton argued against a plural executive in Federalist No. 70, he noted that their existence “tends to conceal faults and destroy responsibility.” By allowing multiple actors to engage in credit claiming and blame avoidance for any given policy, “public opinion is left in suspense about the real author.”
As AGs increasingly use litigation as a method of policymaking, it becomes more difficult for voters to know who to hold responsible for these policy decisions. This is particularly true when AGs and governors simultaneously claim to represent the state’s interests and do so – as with health care and immigration – on opposite sides of the issue.
AGs’ policymaking also raises concerns because much of it occurs well outside of the public view. Recent revelations exposing secretive alliances between AGs and outside interests, including energy firms and plaintiffs’ lawyers, illustrate the dangers of the lack of transparency involved in this form of policymaking. Because so much of the AGs’ contemporary activity occurs behind closed doors and in highly technical legal forums, this form of policymaking may reflect the private interests of the parties involved rather than the broader public interest.
These concerns about democratic accountability are not likely to disappear, particularly since AG activism shows little sign of abating. For better or worse, AGs’ presence on the national stage has become politics as usual.
Paul Nolette is an assistant professor of political science at Marquette University. He is the author of “Federalism on Trial: State Attorneys General and National Policymaking in Contemporary America.”