Voters should keep eye on 2018 races for state attorneys general

Voters should keep eye on 2018 races for state attorneys general
© Greg Nash

Wonky student council types don’t generally dream of one day becoming state attorney general. There’s no fast-paced Netflix drama about state AGs. Most people don’t even know exactly what state AGs do. But earlier this month, Congressman Keith EllisonKeith Maurice EllisonEllison grilled about abuse allegations at Minnesota AG debate Sexual assault is not a game — stop using women to score political points Ellison accuser: Dems 'smeared, threatened, isolated' me MORE (D-Minn.), deputy chairman of the Democratic National Committee and all around progressive rising star, announced that he is running for attorney general of Minnesota. On the same day, Congressman Sean Patrick Maloney (D-N.Y.) also announced his bid in the highly contested primary to become New York’s top lawyer.

Why on earth would someone think about leaving the fast track in Congress to run for state attorney general? Reviewing the past year and a half, the answer becomes clear: State attorneys general have been highly effective in fighting the Trump administration, more than once stopping it in its tracks. But this coalition of progressive lawyers is not a foregone conclusion. Although the races have been overshadowed by congressional midterms, there are more than 30 contested state attorney general elections slated for this fall. We ignore these races at our peril, because state attorney generals are different from other public offices. They can be an essential and unique bulwark against the Trump administration’s excesses, in crucial ways.

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First, while their powers vary, most state attorneys general can take legal actions as soon as they see a harm posed to the people of their states, unimpeded by the political process, as long as they have jurisdiction in an area. To bring a case, all they typically need is a reasonable argument that the law has been broken. They don’t need state legislative approval to file a lawsuit, don’t need to engage in the sausage-making back and forth about the language of a complaint, and their decisions on bringing suit are generally not subject to a governor’s veto. This gives them a distinctive ability to challenge the federal government’s overreach.

Also, state attorneys general often have an impact beyond their borders, because federal court injunctions can have national scope. States typically have little to no legal authority with regard to immigration, since the federal government has sole jurisdiction. But last fall, a coalition of state attorneys general filed lawsuits opposing the rescission of Deferred Action on Childhood Arrivals (DACA), and months later, federal judges in California and New York issued nationwide injunctions requiring the continuation of the program. The effect on the lives of Dreamers was, if not immediate, then pretty darn quick, as the injunctions required the government to process renewals.

There are other areas where states may have jurisdiction, but meaningfully solving the problem requires a nationwide approach. Take the environment. A progressive state can do all it wants to clean its own air and water, but a neighboring state’s pollution will still seep over, since air and water don’t recognize state lines. So right now, the ability of state attorneys general to file lawsuits is especially salient, because they can force the Environmental Protection Agency do its job, and also stop ecological damage wrought by the federal government.

Since last year, progressive attorneys general have leveraged their collective power, and taken concrete actions against the Trump administration on a host of issues. They challenged the travel ban multiple times. They sued to block the Federal Communications Commission’s repeal of net neutrality. They filed a flood of cases against the Environmental Protection Agency led by Scott PruittEdward (Scott) Scott PruittGovernment watchdog probing EPA’s handling of Hurricane Harvey response Wheeler won’t stop America’s addiction to fossil fuels Overnight Energy: Trump rolls back methane pollution rule | EPA watchdog to step down | China puts tariffs on US gas MORE for failing to enforce the laws that protect clean air and water, and for rolling back greenhouse gas emission standards. They sued to stop the border wall and to prevent the addition of citizenship questions to the census, which will lead to massive underreporting in immigrant communities. They sued Betsy DeVosElizabeth (Betsy) Dee DeVosColleges, universities seeing rise in sexual assault claims, lawsuits Support for educational choice continues to grow Stand with veterans instead of predatory for-profit colleges MORE over failing to forgive student loans for victims of fraudulent for-profit schools, and they took on the Trump administration to preserve women’s access to birth control coverage. The list goes on.

Moreover, state attorneys general can partially fill the federal enforcement vacuum, as the Trump administration withdraws from protecting workers, consumers, and basically anyone who isn’t wealthy or incorporated. Last year, the attorneys general of Pennsylvania and the District of Columbia started new labor units, to serve workers who won’t get much help from the federal labor department, where the most original idea to date involves an amnesty program for employers who’ve broken the law.

To understand what’s at risk, look at states where the AGs turn their backs, instead of having our backs. The Arkansas attorney general was ordered by the state’s highest court to approve a ballot initiative to increase the minimum wage, which she had previously rejected multiple times. The Texas attorney general led a coalition of seven states in a lawsuit seeking to end DACA and also intervened to join a lawsuit opposing Austin’s paid sick leave law. Meanwhile, Arizona’s attorney general is touting a new “sandbox” program for new and untested financial products to be introduced with minimal regulation. He has instructed his lawyers to “think less like prosecutors” and more like entrepreneurs, and has sought waivers from consumer protection regulations.

As with congressional midterms, the stakes of these races are high. So maybe wonky kids should set their sights on state capitals, too. Maybe everything that matters doesn’t happen inside the Beltway, after all. We need to mobilize aggressively this coming November, yes, for the midterms, but also for state attorney general races. If we want to preserve our country’s core values, we need the people’s lawyers more than ever.

Terri Gerstein is a labor and work life fellow at Harvard Law School and a leadership in government fellow at Open Society Foundations. She is a former labor bureau chief in the office of the New York attorney general.