In the shambling Democratic response to the onslaught of changes wrought by President Trump in the first weeks of his second term, there has been one bright spot. Democrats control the attorney general’s office in 22 states, and they have filed the most important — and, so far, most successful — cases against controversial Trump administration initiatives.
Simple necessity has led Democrats, who are shut out of power in Washington, to rely on their attorneys general, but this strategy has its limits. Even these initial victories face uncertain futures in a federal judiciary dominated by Republican appointees, and, more to the point, liberals have often placed undue emphasis on achieving political change through the courts.
Liberals love lawyers. The first-term resistance, for example, fell hard for Robert Mueller, who as a special counsel in the Justice Department led an investigation into Mr. Trump’s ties to Russia. (There were “In Mueller We Trust” T-shirts and Mueller action figures.) Notwithstanding the hopes invested in Mr. Mueller as a dragon slayer, the political effects of his investigation turned out to be modest at best. Mr. Trump’s current adversaries have now passed the heroic mantle to the state attorneys general.
State attorneys general occupy an unusual niche in the government. Unlike the attorney general of the United States, the state officials usually have little or no responsibility for bringing criminal cases. (Local district attorneys prosecute most state crimes.) Most state attorneys general are elected, though some are appointed by governors, judges or the state legislature. For the most part, state attorneys general bring consumer protection cases — including big ones, like those against opioid manufacturers — and they defend states when they are sued. A few, like Letitia James in New York and Dana Nessel in Michigan, are somewhat well known, but most toil in semi-obscurity.
Not for long. Last week, a federal judge in New York restricted the access of Elon Musk’s so-called Department of Government Efficiency to the Treasury Department’s payment and data systems. A judge in Washington halted Mr. Trump’s attempt to end birthright citizenship. A judge in Rhode Island, John J. McConnell Jr., blocked the new administration’s ability to withhold funds from programs for which Congress has appropriated funds.
Then, on Monday, Judge McConnell raised the stakes when he ruled that the Trump administration had refused to comply with his order to resume the flow of federal grants. (That judgment is now being appealed.) If Mr. Trump’s defiance continues, the standoff will create the prospect of a constitutional crisis — and it will be the state attorneys general in the case who bear the responsibility of defending the rule of law.
The new administration is facing dozens of lawsuits challenging its actions, including some by labor unions, laid-off government workers and ordinary citizens, but those filed by attorneys general carry special weight.
“When individuals sue the government, they can usually only get relief for themselves,” said Samuel Issacharoff, a professor of law at New York University, “But the A.G.s have standing to challenge entire federal initiatives because they oversee state programs that are affected by the federal actions. Private lawyers with individual clients can’t do that.”
The breadth of Mr. Trump’s efforts to rearrange the constitutional structure of government has given the attorneys general an opportunity. “If the president has the right to do what he’s doing, God bless him,” Matthew Platkin, the attorney general of New Jersey, told me. “But he can’t violate the law or the Constitution. That’s why we keep going to court — to preserve the rule of law.”
According to Mr. Platkin, who was appointed by Gov. Phil Murphy, he and his fellow Democrats saw that many of Mr. Trump’s plans put new burdens on the states. “When the federal government freezes billions or millions in spending in our state, our nine and a half million people are harmed, and we can sue to get it back,” Mr. Platkin said.
As it happens, Mr. Platkin and the other Democrats are following a playbook that was largely written by Republican attorneys general during the Obama administration. They challenged the constitutionality of the Affordable Care Act and a host of other White House initiatives. Greg Abbott was the attorney general of Texas during this era, and at the time he described a typical workday this way: “I go into the office, I sue the federal government, and I go home.” (On behalf of Texas, Mr. Abbott filed more than two dozen lawsuits against the Obama administration.)
Not coincidentally, Mr. Abbott parlayed that record of defiance against a Democratic president into a run for governor, a job he still holds. An old political joke about state attorneys general is that A.G. stands for “Almost Governor,” because so many of them wind up running for the office. Just last year publicity from high-profile lawsuits helped propel Josh Stein, in North Carolina, and Bob Ferguson, in Washington State, from attorney general to governor; back in the day, Eliot Spitzer and Andrew Cuomo in New York followed the same route. In a blue state today, it’s good politics for a statewide official like an attorney general to be leading the fight against Washington.
But at this point the Democratic attorneys general have won only preliminary judgments in cases that will now wend their way through the appellate process. (Democrats also brought their cases in friendly jurisdictions, before sympathetic federal judges, just as Republican attorneys general engaged in forum shopping when it helped them.) Ultimately, though, at least some of the Democratic victories will probably wind up in front of the Supreme Court, where conservatives now hold at least as much sway as they do in the rest of the federal government.
And any strategy based on multiple lawsuits is bound to face some setbacks, as the 2025 resistance has already discovered. This week, a judge in Massachusetts, in a preliminary ruling, let the Trump administration proceed with its plan to offer buyouts to federal workers. That case was not brought by the state attorneys general, but it would be folly to predict that their winning ways will continue indefinitely.
These kinds of lawsuits may be, at best, stopgaps. The president and his Republican majority in Congress are preparing to pass next year’s federal budget, which may codify the spending cuts that Mr. Trump is now trying to impose unilaterally. Then the attorneys general’s legal challenges will become moot. In the American system, political victories matter more, and last longer, than court cases.
State attorneys general can — and should — fight with all the tools available to them, and they may well win some battles, as they have so far. But the biggest guns are all still pointing the other way.
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