[ Attorneys General can make a real difference, particularly if
they are willing to consistently bring lawsuits against the
presidential agenda both to protect their state and the country as a
whole.] [https://portside.org/] 

 HOW NEWLY ELECTED ATTORNEYS GENERAL COULD THWART TRUMP’S WORST
MOVES  
[https://portside.org/2018-11-19/how-newly-elected-attorneys-general-could-thwart-trumps-worst-moves]


 

 Lisa Needham 
 November 14, 2018
Rewire.News
[https://rewire.news/article/2018/11/14/how-newly-elected-attorneys-general-could-thwart-trumps-worst-moves/]


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 _ Attorneys General can make a real difference, particularly if they
are willing to consistently bring lawsuits against the presidential
agenda both to protect their state and the country as a whole. _ 

 During his campaign, Keith Ellison stated he’d work to protect the
Affordable Care Act and reproductive health freedoms., credit: Alex
Wong / Getty // Rewire.News 

 

In all the excitement and dread of Election Day, it might have been
overlooked that there were attorney general races in key states.
Attorneys general can make a real difference, particularly if they are
willing to consistently bring lawsuits against the presidential agenda
both to protect their state and the country as a whole. The election
of several progressives last week means that might soon be in the
cards.

We’ve already seen the power of progressive attorneys general
banding together. On Election Day, the attorneys general of 18 states
sent a joint comment
[https://oag.ca.gov/system/files/attachments/press-docs/2018.11.06-multistate-comment-letterdhs-docket-no.iceb-2018-0002-and-hhs-docket-no.hhs-os-2018-0023.pdf]on
proposed U.S. Department of Homeland Security regulations that would
undermine the settlement agreement in _Flores v.
Reno_. _Flores_ requires the federal government to favor the release
of immigrants who are minors, even if they arrive with their parents.
After 20 days, the children must be released and placed in foster or
shelter care. The administration has proposed
[https://www.gpo.gov/fdsys/pkg/FR-2018-09-07/pdf/2018-19052.pdf]undercutting
the _Flores_ settlement so drastically as to render it defunct.

Similarly, attorneys general in Maryland and Washington, D.C. are the
plaintiffs in an emoluments lawsuit against President Donald Trump. A
federal court recently ruled
[https://oag.dc.gov/release/statement-ag-racine-courts-historic-ruling] that
lawsuit could proceed, which means the litigation discovery process
might soon lay bare one facet of Trump’s corruption.

On the flip side, conservative attorneys general have long been good
at leveraging their power to effectuate change via litigation. When
Scott Pruitt was the attorney general of Oklahoma, he sued over EPA
regulations 14 separate times
[https://www.nytimes.com/interactive/2017/01/14/us/politics/document-Pruitt-v-EPA-a-Compilation-of-Oklahoma-14.html?_r=0].
In September, Texas Attorney General Ken Paxton and 19 other
Republican attorneys general filed the most recent lawsuit
[https://rewire.news/article/2018/09/04/wednesdays-lawsuit-is-republicans-next-chance-to-gut-the-aca-but-it-wont-be-their-last/] against
the Affordable Care Act (ACA), arguing that when the tax bill undid
the individual mandate, the entire ACA became unconstitutional.

In the Trump era, it’s more important than ever to have a strong
cohort of progressive attorneys general that work to thwart the
administration’s worst acts. By many metrics, then, the midterms
were good for Democrats. Three states—Colorado, Michigan, and
Nevada—had open seats previously held by Republicans that changed
[https://ballotpedia.org/Attorney_General_elections,_2018#Attorney_general_offices_that_changed_party_control] to
Democratic control. And although the race hasn’t been officially
called yet, it appears that Wisconsin may flip as well, with Democrat
Josh Kaul ahead of
[https://www.jsonline.com/story/news/politics/elections/2018/11/07/wisconsin-attorney-general-election-results-schimel-versus-kaul/1849068002/] incumbent
Republican Brad Schimel by about 18,000 votes
[https://www.nytimes.com/interactive/2018/11/06/us/elections/results-wisconsin-elections.html].

In Minnesota, the voters replaced a Democrat with a Democrat, with
former U.S.  Rep. Keith Ellison replacing incumbent Lori Swanson, who
chose to run for governor instead but didn’t make it past the
primary. Minnesota’s race was still notable, however. First, Ellison
had been the first Black person elected to the House of
Representatives from Minnesota and the first Muslim person in the
House. There was a very real concern as to whether his success in an
urban and diverse congressional district could translate statewide,
when much of Minnesota is rural and conservative. Next, Ellison’s
challenger was Doug Wardlow, an attorney for the conservative Alliance
Defending Freedom who made a name for himself as a deeply transphobic
attorney, testifying against
[https://www.mediamatters.org/blog/2017/04/04/how-hate-group-alliance-defending-freedom-infiltrating-public-schools/215909] trans-inclusive
bathroom policies and helming a lawsuit
[https://rewire.news/ablc/2018/07/27/christian-law-firm-asks-supreme-court-to-allow-workplace-discrimination-against-transgender-people/]defending
a funeral home for firing an employee after she told him she would
begin presenting as a woman at work.

Ellison’s win gives him control of an office with a long history of
protecting the people of Minnesota. Current Minnesota Attorney General
Swanson obtained a consent decree
[https://minnesota.cbslocal.com/2012/12/12/minn-ag-announces-settlement-with-midland-credit/] against
a debt collection company that sued people for debts that were
unverified or had already been paid. Her predecessor, Mike Hatch,
filed lawsuits alleging an insurance company
[https://mn.gov/law-library-stat/archive/ctappub/0004/c1991705.htm] violated
consumer protection laws, a major bank
[http://articles.latimes.com/1999/jun/10/business/fi-46019] impermissibly
sold consumer data, and a credit card company
[http://www.washingtonpost.com/wp-dyn/articles/A37697-2004Dec30.html] engaged
in deceptive advertising about interest rates. Before Hatch, the
Minnesota Attorney General’s Office was helmed by Hubert H.
“Skip” Humphrey III. Humphrey oversaw a historic settlement
[http://publichealthlawcenter.org/topics/tobacco-control/tobacco-control-litigation/minnesota-litigation-and-settlement] with
the tobacco industry, obtaining more than $6 billion for the state and
making 35 million pages of industry documents public.

During his campaign, Ellison stated he’d work to protect the ACA
[https://www.twincities.com/2018/08/10/andy-slavitt-why-i-support-keith-ellison/] and
reproductive health freedoms. He also said that he would stand up
[https://www.insightnews.com/opinion/keith-ellison-how-i-will-continue-to-defend-the-rights/article_f286c10a-9bf8-11e8-87c4-afcac320541e.html] to
the Trump administration, noting that he’d continue in the tradition
of Democratic state attorneys general who fought the Muslim travel
ban.

Elsewhere in the Midwest, progressives scored a major victory in
Michigan, where the GOP had held the office for the previous four
terms. The current attorney general, Bill Schuette, couldn’t run
again because of state-specific term limits. Schuette opted to run for
governor instead, where he lost to the Democratic candidate, Gretchen
Whitmer, by nearly 10 percentage points
[https://www.nytimes.com/elections/results/michigan-governor].
Democrat Dana Nessel went on to beat Republican Tom Leonard for the
open attorney general seat. The contrast between what Michigan will
likely be like under Nessel versus Schuette couldn’t be starker.

Earlier this year, Schuette issued
[https://www.freep.com/story/news/local/michigan/2018/07/20/schuette-michigan-law-lgbt-discrimination/809538002/] a
formal attorney general opinion stating that Michigan’s civil rights
law didn’t protect LGBTQ people from discrimination. That opinion
stood in direct opposition to that of Michigan’s civil rights
commission, which had decided just two months earlier
[https://www.freep.com/story/news/local/michigan/2018/05/21/michigan-civil-rights-commission-elliott-larsen-act-lgbtq-discrimination/630552002/] that
it would begin reviewing complaints based on sexual orientation or
gender identity. This was almost certainly grandstanding for his
governor run, but also had the real-world effect of throwing LGBTQ
civil rights into complete disarray as Michigan residents were forced
to determine whether Schuette’s opinion rendered the civil rights
commission incapable of providing relief for individuals.

There’s also evidence that Schuette ignored the water crisis in
Flint for far too long. He received
[http://www.michiganradio.org/post/schuette-failed-residents-flint-water-crisis-say-some-community-leaders] the
first complaints about water quality in January 2015 but failed to
open an investigation until a year later. And, although he also touted
his role in bringing charges against several government officials over
Flint, he also said that as governor he’d continue the practice
[https://www.crainsdetroit.com/news/schuette-keep-law-firms-place-represent-state-officials-flint-water-cases] of
having state agencies—funded with taxpayer money—pay the legal
bills of the employees charged with criminal wrongdoing in the Flint
water crisis.

Newly elected Michigan Attorney General Nessel began her career as a
prosecutor, often working on [https://www.dana2018.com/about/] child
abuse cases. She then became a criminal defense attorney and a civil
rights advocate. As the latter, she had several victories in landmark
LGBTQ cases. She worked on _Harmon v. Davis_
[https://sbmblog.typepad.com/files/20110722_s141888_37_141888_2011-07-22_or.pdf],
a 2011 case that held that nonbiological parents in same-sex
relationships could sue for custodial rights. She also played an
instrumental role in _DeBoer v. Snyder. _That case
[https://rewire.news/article/2013/10/17/michigan-marriage-equality-trial-set-for-february/] challenged
Michigan’s bans on both same-sex adoption and same-sex marriage. It
was eventually consolidated with _Obergefell v. Hodges_ and helped
form the basis for nationwide legalization of same-sex marriage.

At the time Nessel began her run for attorney general, she was
president of Fair Michigan [https://www.fairmichigan.org/], an
organization that works to extend Michigan’s civil rights
protections to people regardless of gender, sex, or sexual
orientation. Fair Michigan also partnered with
[https://www.dana2018.com/about/] the Wayne County prosecutor’s
office to investigate and prosecute anti-LGBTQ hate crimes. In the
face of a federal administration that is pushing anti-LGBTQ policies,
a state attorney general willing to take an aggressive stance against
hate crimes could set the tone for prosecutors across Michigan.
Additionally, just like Ellison, Nessel notched a statewide first:
She’s the first LGBTQ person to be elected to a statewide office in
Michigan.

Nessel has also indicated
[https://www.dana2018.com/issues/] she’ll be a friend to labor
unions. This is critical at a time when Michigan unions have been
crushed under an anti-union state right-to-work law enacted in 2013.
Since then, Michigan unions have suffered staggering membership
declines, seeing as many as 137,000 people
[https://www.michigancapitolconfidential.com/a-look-at-unions-in-michigan-five-years-after-right-to-work] fall
off the union rolls. Union political spending has also been decimated.
Nessel’s commitment to the rights of workers to organize and to
prosper can make a real difference in the state of Michigan.

Finally, in an open contest in Colorado (current Colorado Attorney
General Cynthia Coffman chose to run for governor instead, but got
only 6 percent of the vote in the GOP state assembly primary
[https://www.coloradoindependent.com/2018/04/14/greg-lopez-cynthia-coffman-walker-stapleton/]),
Democrat Phil Weiser bested Republican George Brauchler by a full 4
percent
[https://ballotpedia.org/Colorado_Attorney_General_election,_2018].
Weiser made Trump’s overreach and lawlessness a central point of his
campaign, saying he got in the race specifically to provide a check
on Trump
[https://www.coloradoindependent.com/2018/10/22/weiser-brauchler-trump/].

Under Coffman, the Colorado Attorney General’s Office had already
joined
[https://patch.com/colorado/littleton/attorney-general-race-differences-between-brauchler-weiser] multi-state
litigation against opioid manufacturers and tobacco companies.
However, where Coffman declined—and Brauchler agreed with that
refusal—to join any lawsuits defending Deferred Action for Childhood
Arrivals, Weiser stated he would participate in those.

Weiser also ran on a platform
[https://www.cpr.org/news/story/2018-election-colorado-attorney-general-brauchler-weiser] of
prison and bond reform. He wants to implement diversion programs for
individuals living with mental illness or drug addiction. He also said
he would reform the cash bond process to ensure people don’t
languish in jail because of an inability to pay the bond.

Regrettably, Weiser is slightly less enthusiastic
[https://www.huffingtonpost.com/entry/midterms-democrats-attorney-general-climate-lawsuits_us_5be5f199e4b0e8438897aa58] about
using his post to combat climate change. He indicated he was
uncomfortable with suing oil companies over their role in climate
change but asserted it would make legal sense to sue coal companies
instead. However, he did say that he would join
[https://www.cpr.org/news/story/2018-election-colorado-attorney-general-brauchler-weiser] the
existing litigation seeking to stop the administration’s rollback of
the Clean Power Plan.

All told, Democrats now occupy a majority of the 43 states where the
electorate chooses the attorney general. When they act in concert,
they have an opportunity to effect real change. Even as the threat of
a conservative United States Supreme Court looms, strategic litigation
in lower courts can positively alter things at the state or circuit
level. Large-scale multi-state litigation also has the ancillary
effect of taking a very long time to proceed. This means things like
lower court injunctions of Trump administration actions could stand
for some time until the matter reaches the Supreme Court.

In the meantime, at the state level, Ellison, Nessel, and Weiser have
demonstrated a real commitment to ensuring that all citizens in their
state feel listened to, respected, and protected.

_[Lisa Needham is an attorney who has worked in the areas of First
Amendment, education, and labor law. She is also an adjunct law
professor focusing on teaching legal writing to non-traditional
students. She is the deputy editor of Lawyerist, where she writes
about access to justice and diversity in the law, and she is also the
editor-in-chief of Bitter Empire. Follow her on Twitter: @snipy
[http://@snipy]]_

_Copyright c 2018 Rewire.News [https://rewire.news/]. Reprinted with
permission. May not be reprinted without permission
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