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State attorneys general have taken off as a partisan force in national politics

New York Attorney General Eric Schneiderman speaks at a news conference with other U.S. state attorneys general to announce a state-based effort to combat climate change in 2016. (Reuters)

Almost immediately after President Trump announced last week that he would end key Affordable Care Act subsidies meant to lower costs for lower-income Americans, a coalition of Democratic state attorneys general filed suit challenging the president’s decision. A similar coalition also threatened to act against the health-care executive order Trump signed on the same day as his announcement about ACA subsidies, a move the AGs claimed would similarly sabotage the health insurance market.

Partisan coalitions of state attorneys general are a new wrinkle in national politics

These rapid-fire legal actions reflect the growing influence of AGs on the national stage. AGs have already challenged Trump on several fronts. Not long after the president announced last month that he would end the Obama-era Deferred Action for Childhood Arrivals program, a coalition of Democratic state attorneys general filed suit challenging that decision.

They have also challenged Trump’s travel ban and the Department of Justice’s threat to cut off federal funds for “sanctuary cities,” brought a number of legal actions about proposed delays of environmental regulations, sued the Department of Education for delaying Obama-era regulations of for-profit colleges and launched suits claiming that Trump is violating the Constitution’s previously obscure emoluments clause.

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Special counsel Robert S. Mueller III has taken advantage of the AGs’ new place in national politics, partnering with New York AG Eric Schneiderman in his investigation of the Trump administration — a partnership that, among other things, means any crimes uncovered could be pursued under state law, where the president has no power to pardon.

These nationally active AGs are following the lead of Republican AGs who frequently took Barack Obama to court during his tenure in the White House. The graph below, drawn from my research on AG activism, shows how multistate lawsuits challenging the federal government have been increasing.

While multistate AG litigation came into view as early as the Reagan administration, the spike we’ve been seeing shows that over the past few years, stable coalitions of AGs have organized largely by party. That’s new. In the 1980s, when AGs challenged federal policy, they tended to do so in bipartisan groups. The litigation was also about a smaller range of policies, primarily targeting the Reagan administration’s failure to regulate Midwestern carbon emissions, which led to acid rain in downwind states.

That bipartisan approach is all but gone in these state challenges to federal policy. Today, almost every time there’s a major federal policy change, partisan groups of AGs will bring a challenge — and often an opposing group of AGs will intervene to defend the administration. That’s what happened when Obama originally announced the DACA program, for example; it’s happening now as Trump tries to end the program. Some Republican AGs will almost surely intervene to defend Trump’s latest health-care actions, having praised what their Democratic counterparts are aiming to block in court.

Democratic AGs are more unified against Trump than Republican AGs are in defending him

This shift toward increasingly partisan AG coalitions has some exceptions.

First, under Trump, the Democratic AG coalition seems to be more stable and unified than the Republican one, particularly regarding immigration policy. On DACA, for example, nearly all Democratic AGs have joined the challenge to Trump’s move to end the program. By contrast, most Republican AGs declined to join the nine AGs threatening to sue the administration if Trump did not rescind DACA — even though most of those same Republican AGs joined the initial challenge to DACA when Obama was in office.

Trump is trying to reach across the aisle. Good luck with that.

This may be explained in part by Republican AGs’ hesitation to sue a president of their own party. But they’ve also been slow to defend his administration’s policies. The same Democratic AG coalition that’s defending DACA had already attacked various iterations of the president’s travel ban. But a smaller proportion of Republican AGs (16 of 28) got involved with defending those bans. Likewise, only 10 Republican AGs intervened to defend the president’s efforts to revoke federal funds to sanctuary cities.

AG coalitions can still be bipartisan

Despite the nation’s deepening polarization, AGs are still finding ways to cooperate across party. When news broke that hackers had stolen Equifax data from about 143 million people, for example, a coalition of 32 AGs from both parties launched investigations of the company.

Similarly, a bipartisan coalition of 41 AGs announced last month that they were issuing a fresh wave of subpoenas demanding that leading pharmaceuticals companies release information about how they marketed prescription opioids. That investigation, spurred by the escalating opioid overdose crisis, could become one of the AGs’ most substantial industry investigations since their scrutiny of tobacco industry practices led to a $206 billion agreement with the industry in 1998 — still the largest civil settlement in American history. As has become standard in these sorts of industry investigations, the AGs seek not only monetary fines but substantial reforms to corporate governance applicable nationwide.

Both tracks of AG activity — challenging (or defending) administration policies, and targeting corporate practices — show AGs using their considerable state-level legal tools to influence national politics and policy. Their increased activity during the nine months of Trump’s administration suggests their national role will expand in the months ahead.

Paul Nolette is an associate professor of political science at Marquette University and author of Federalism on Trial: State Attorneys General and National Policymaking in Contemporary America (University Press of Kansas, 2015).