Viewpoint: State Attorneys General Matter. Here’s Why.
By Sam Olens and Thurbert Baker – Olens and Baker are each former Georgia attorney generals. This column was previously published in the Atlanta Business Chronicle
At times in our history, the federal government has been seen as a change agent. This isn’t one of those times.
With an anti–Big Government White House invested in deregulating and dismantling the administrative state, Congress in a near-permanent state of partisan gridlock and a Supreme Court guided by an originalist view of the role of government, state legislatures and state government agencies have stepped in to fill the legislative and regulatory void.
State attorneys general, meanwhile, have assumed a more proactive and coordinated litigating posture to effectively challenge federal law enforcement policy and protect state regulation from federal preemption.
The increase in attorney general activism is also a response to the political polarization that has plagued our civic life for the past two decades but has intensified by orders of magnitude during the Obama and Trump administrations. During the Obama years, conservative state attorneys general banded together to oppose regulatory changes and actions taken by the Environmental Protection Agency (EPA), the Department of Health and Human Services (HHS), the Consumer Financial Protection Bureau (CFPB) and other federal agencies. They submitted public comments opposing proposed regulations, filed multistate lawsuits seeking to prevent their enforcement and submitted friend-of-the-court briefs in support of private actions by individuals, companies and industry coalitions or associations.
More recently, liberal state attorneys general have dialed up the activism to 11 in response to President Trump’s launch of the most aggressive agenda of any president in living memory. Many state AGs, seeing themselves as the nation’s “last line of defense,” have joined together to oppose a wide range of administration policies, from expanding offshore drilling to rolling back vehicle emission standards to placing immigration-related conditions on federal funding for law enforcement grants.
In states that have taken on the role of change agents—legalizing cannabis, tightening gun control laws, creating state-level CFPBs—state AGs have been playing offense and defense: enforcing state laws and regulations against companies and individuals and defending state sovereignty against federal government intrusions.
At this writing, Democratic AGs have filed approximately 60 lawsuits against the Trump administration, including actions challenging the expansion of association health plans, caps on state and local tax deductions, parent-child separations at the border, the methane rule rollback, expanded offshore drilling and the repeal of net neutrality rules.
While no one expects a divided 116th Congress to make much progress on any policy initiatives, Democrats emerged from the 2018 midterm elections at the state level with a majority of AG seats — 27 to Republicans’ 24 [including Washington, D.C.], a net increase of four— fortifying the party’s efforts to use states as a firewall against President Trump through more challenges to administration policies and more investigations and enforcement actions relating to state laws on consumer protection, antitrust, financial services, data privacy, unfair/deceptive business practices, false claims, the environment and other laws to protect the public interest.
State AGs, by routinely combining their resources on multistate and multi-defendant investigations and enforcement actions, both civil and criminal, have raised the stakes for companies and entire industries. Understanding the scope of an AG’s authority and its level of activity and the political dynamics framing their choices, is critical to assessing, and addressing, many businesses’ regulatory risks.