State attorneys-general are shaping national policy 

Via The Economist

The following passage is an excerpt; click here to read the full article.

How did the attorney-general’s office come to be held by partisans who pursue flashy lawsuits rather than defending the laws of their states? The story dates back to a Supreme Court case on environmentalism. In the early 2000s non-profit groups, cities and states teamed up against the Bush administration for not regulating greenhouse gases. They argued that pollutants were a health risk and that the Clean Air Act required the feds to do something. The plaintiffs’ argument was strong; the question was who had standing to sue. The Supreme Court ruled that due to the threat of rising sea-levels the Massachusetts attorney-general could lead the charge.

Massachusetts v EPA set the precedent for a single state to challenge the federal government in court. That drastically expanded the reach of attorneys-general—Republicans soon raced to sue Barack Obama when he took office. Over time attorneys-general realised that if they banded together with like-minded colleagues across the country, they could handpick the district with the most sympathetic judges in which to bring their case. One federal judge’s injunction in their favour, and against Washington, could shut down a policy for the whole country until a higher court ruled on its appeal. “Not only can they play on their home-turf, they can now choose the referee,” says Steve Vladeck of the University of Texas at Austin.

The strategy took off when Mr Trump became president. Democratic attorneys-general sued the federal government more times in four years than they had in the previous 16, says Paul Nolette, a political scientist. Republicans took it a step further under Joe Biden, aiming their litigation not just at Democratic policies but at the administrative state itself. Today these lawsuits are masterfully co-ordinated to maximise partisan wins, says James Tierney, a former attorney-general of Maine who teaches at Harvard University. With that in mind it is less surprising that Mr Trump’s Muslim travel ban was halted by a judge in Honolulu and mifepristone, an abortion pill, was temporarily outlawed by a judge in the Texas Panhandle.