The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
States Keep Suing the Feds, but Not in Defense of Federalism
State Attorneys General appear more interested in lining up with their political tribe than they are in defending state interests.
As of today over 130 lawsuits have been filed against early Trump Administration initiatives and actions. A decent chunk of these suits have been filed by state attorneys general, and state AGs have filed amicus briefs in a great many more.
That blue state AGs are suing the Trump Administration with regularity should be no surprise. Red state AGs did much the same thing (albeit with less frequency perhaps) against the Biden Administration. Indeed, it seems a key part of the job description for being an AG these days is a willingness to sue presidential administrations of the other party (or file amicus briefs in defense of a president of the same party).
What is striking when one looks at the various suits filed by state AGs (and many of the cases in which state AGs file amicus briefs) is how few involve true state interests, and even fewer can be understood as defending states as states or preserving the bulwark of federalism. Instead, state AG litigation is increasingly just an element of partisan lawfare--or I so I argue in my latest column for Civitas Outlook.
Here's an excerpt:
State resistance to the federal government is nothing new. James Madison expected state governments would push back against federal overreach to the benefit of individual liberty. As he explained in Federalist 51, the Constitution creates a "compound republic" in which each level of government has its own sovereign power derived from the people. States are not subdivisions, but "distinct governments." Constraining federal power and preserving state policy prerogatives helps check governmental intrusions and fosters greater self-government. The compound federalist structure, Madison expected, would provide a "double security" for "the rights of the people" as the federal and state governments press against each other, each seeking political support.
Part of how states work to protect individual liberty is by preserving their authority to serve the interests and wants of their citizens. Curiously enough, few of the lawsuits filed against the Trump Administration have anything to do with state prerogatives or state power. While some of the suits concern efforts to pause or limit funding to state institutions, such as state universities, or seek to limit the preemptive effect of federal policy, most concern naked policy disagreements between Republicans and Democrats over the proper course of federal policy. Blue states are challenging the policy initiatives of a Republican president not because these initiatives constrain state choices or injure state interests but because they advance the agenda of the other team. Red states, in turn, are lining up to support the President without regard for whether distinct state interests are at stake. . . .
State attorney general litigation could serve to preserve state autonomy, corralling federal regulatory authority, limiting federal preemption, and curtailing Uncle Sam's ability to induce state cooperation with conditional spending. Like its predecessors, the Trump Administration will provide no shortage of opportunities to pursue such causes. Instead, most state attorneys general seem more interested in forcing federal policy into alignment with their own political priors or the demands of their respective tribes. Thus, California spends more time suing the federal government to increase the stringency of federal environmental regulations than it does preserving its and other states' ability to adopt those policies most in line with state voter preferences.
