California would have the fifth largest economy in the world if the state was a separate nation. And ever since Donald Trump’s election as president of the United States, the Golden State has behaved as if it really is a separate country, standing up to Trump and repeatedly suing the federal government on a panoply of issues.
So far, California is well ahead. State Attorney General Xavier Becerra (D) has filed 61 lawsuits against the Trump administration, winning 16 and losing two, according to the tabulation by Ben Christopher of the nonpartisan group CalMatters. Thirty-nine decisions are still pending and four lawsuits are on hold, Christopher’s term for cases that have been dropped or suspended with neither side emerging as a clear winner.
California is not alone in successfully challenging Trump. Attorneys general in other Democratic-controlled states, particularly in the Northwest and East coast, have filed scores of multi-state lawsuits and won the majority of them.
“Banding together has been a successful strategy for state attorney generals,” says Dr. Paul Nolette, an associate professor of political science at Marquette University who has done an extensive tabulation of multi-state lawsuits extending back to the Ronald Reagan administration.
Nolette’s scorecard shows that state attorneys general have filed 91 multi-state lawsuits against the administration in the less than three years that Trump has held office. This compares to 78 multi-state lawsuits filed against the administration during the entire eight years of Barack Obama’s presidency. States won 57 percent of those lawsuits.
Of the 91 cases filed against Trump, state attorneys general have won 35 and lost 13. Thirty-four cases are pending and nine had no clear winner. But 11 of the wins are on appeal and could be reversed by an appellate body or the Supreme Court.
This month, on the single day of October 11, federal courts across the nation issued three rulings against Trump’s attempt to withhold permanent resident cards known as green cards from immigrants who use public benefits such as food stamps or housing assistance. Federal judges in California, New York and Washington State issued injunctions temporarily blocking the plan.
But despite the states’ many victories, it’s too early for Trump’s opponents to pop the champagne corks. The pending cases include some momentous ones, most of which will be decided by federal courts that have become more conservative with the addition of Trump’s judicial nominees.
For instance, pending cases include a proposed rollback of the 1973 Endangered Species Act. California alone has more than 300 species listed as endangered or threatened. The Trump administration wants to change the way the law is enforced and — for the first time — allow government officials to consider the economic impact of protecting a new species.
Also pending is the fate of a landmark voluntary agreement that California reached with four of the world’s largest automakers - Ford, Honda, BMW and Volkswagen - to improve fuel efficiency and reduce automobile emissions that contribute to global warming.
The agreement, announced in July, enabled California and 14 other states that accept its air pollution rules to continue with most of the regulations on auto emissions agreed to in 2012 by the Obama administration, California and the carmakers.
In September, Trump announced on Twitter that the Department of Transportation would deny a waiver allowing California to do this. His announcement undid nearly a half century of federal policy, first permitted by the Richard Nixon administration under the Clean Air Act of 1970.
Under eight presidents from 1968 to 2017 California was granted 107 waivers by the Environmental Protection Agency to take actions to combat air pollution. The California standards, adopted by many other states, became the de facto standards of the auto industry.
California and 22 other states, joined by New York City, Los Angeles and Washington, D.C., have sued to block the administration’s action voiding the agreement between California and the automakers. They argue that Trump’s decision was made without sufficient explanation or justification in violation of federal law.
Earlier this year, California won a major victory when it defeated Trump’s attempt to add a citizenship question to the 2020 Census. The Golden State and various Latino groups said a citizenship question would discourage unauthorized immigrants from participating in the Census.
After a federal court ruled in California’s favor, the U.S. Commerce Department dropped the question from the census form.
Tensions between the federal government and the states are embedded in the national fabric. The U.S. Constitution gives certain powers to the federal government, other powers to the state governments, and yet other powers to both.
The Civil War at tremendous human cost established federal supremacy, but the system of federalism — the relationship between the national government and the states — has been in permanent flux. In the 21st century states have often gone to court when they believe the federal government has overstepped its boundaries.
States have won a majority of these lawsuits, but the numbers alone do not tell the full story. In fact, states may have been most influential in cases they lost but exercised a moderating influence on the outcome.
One example is the Affordable Care Act (ACA), often called Obamacare, the landmark achievement of the Obama presidency. Republican state attorneys general challenged its constitutionality.
The ACA survived on a 5-4 decision in the Supreme Court with the majority opinion written by Chief Justice John Roberts. But the court struck down an ACA provision requiring states to expand Medicaid, the federal-state program that provides health insurance for the poor and disabled.
States were allowed to decide for themselves whether they wanted to expand Medicaid, as 36 of them and the District of Columbia have since done.
Another issue in which states and other litigants exercised a moderating influence is President Trump’s controversial travel ban, upheld in its third iteration by the Supreme Court in a decision also written by Chief Justice Roberts. But there are notable differences between the travel ban Trump issued by executive order during the first week of his presidency and the one approved by the Supreme Court nine months later after lower courts rejected two earlier versions.
The first version of the travel ban barred entry into the U.S. from seven Muslim-majority countries and nearly all refugees from around the globe. It caused panic at airports as 750 travelers were detained and was denounced by world and religious leaders.
The third court-approved version, which dropped Iraq and Sudan from the list of banned countries and added Venezuela and North Korea, is in the words of the liberal-leaning Vox “much more moderate than the first.” It exempts green-card holders and anyone who held a valid visa to enter the United States the day the travel ban proclamation was issued. Foreign students, except from Syria, are also exempted, as are temporary foreign workers from Libya, Somalia and Yemen.
The travel ban remains odious to many liberals and the Affordable Care Act an overreach to many conservatives, but there is no denying that these measures were tempered by the lawsuits filed by the states.
There are at least two other takeaways from the useful analyses of Nolette and Christopher. The first is that many of the early regulations issued by the Trump administration were so poorly drafted that states won a number of easy victories in court. But what Christopher calls “the low-hanging fruit” is no longer available as Trump administration officials have become more adept in their regulation filings.
The second and more important takeaway is that the United States now stands at a critical juncture on the environment. Most of the Trump administration’s attempts to roll back environmental protections on clean air and water, alternative energy and endangered species have been challenged by states and are yet to become law.
But if Trump is re-elected for a second term, many of these challenges will most likely be decided by a Supreme Court on which conservatives hold a majority. If Trump is succeeded by a Democrat, most of his proposed environmental changes would almost certainly be discarded, and the attorneys general would in turn drop their lawsuits.
No matter what side you’re on, you can thank the state attorneys general, whose many lawsuits against Trump have focused the spotlight on the 2020 election.
--By Lou Cannon
Trump Administration Sued by Many Mostly Democrat-Led States
As of October 17, 68 lawsuits had been initiated against the Trump administration via a complaint or petition filed by multiple states, according to data compiled by Dr. Paul Nolette, an associate professor of political science at Marquette University, for the website AttorneysGeneral.org. Democrat-governed New York has been an initial plaintiff in 53 of those multistate suits, more than any other state, although Democrat-led California isn’t far behind at 49. The mostly Republican-controlled states of Alaska, Idaho, New Hampshire and Oklahoma haven’t been initial plaintiffs in any of the 68 lawsuits.