IN A 2016 FUNDRAISING PITCH just after Donald Trump was elected president, Attorney General Maura Healey said she wouldn’t hesitate to take the incoming president to court if he carried out his “unconstitutional campaign promises.” She insisted her role as “the people’s lawyer” is the “first line of defense against illegal action by the federal government.”
She’s made good on her word. Over the past 30 months, Healey and a handful of her colleagues in other states have led a massive legal charge against the Trump administration. Healey has personally filed or joined 44 multistate federal lawsuits; she’s been on the winning side 15 times, the losing side four times, one case was withdrawn, and 24 cases are still pending.
The 48-year-old Healey says the litigation barrage has been necessary to challenge a flurry of dangerous moves by the administration in everything from environmental regulations to for-profit colleges and immigration policy. She insists her legal challenges to Trump have not detracted from her in-state work or cost taxpayers a dime. Healey views the Trump lawsuits as an extension of her office’s regular work and not something separate and distinct. As a result, she hasn’t tried to put a price tag on her Trump challenges, saying her staff is just working harder and longer to get everything done.
“What you have here is a group of 600 men and women who are working extremely hard, who are putting in a ton of hours to take on this additional work,” she said of her staff during an interview in her office. “If we don’t do it, no one else will do it. And we have to do it because we need to protect Massachusetts’s interests.”
Healey’s budget has increased 16 percent since her first full year in office, but there is nothing distinctly set aside for the Trump litigation. She said she keeps the cost of federal litigation down by joining other state attorneys general in filing lawsuits and she occasionally taps the assistance of two attorneys who work for her but are being paid by a Michael Bloomberg-financed nonprofit.
To Healey, lawsuits against the federal government are nothing new. When she worked for her predecessor, Martha Coakley, Healey spearheaded the state’s successful challenge of the federal Defense of Marriage Act – a challenge that paved the way for same-sex marriages.
But the scope of the litigation Healey and her fellow AGs are now pursuing against the Trump administration is unprecedented. Coakley filed or joined about 15 lawsuits against the federal government during her eight-year tenure; Healey has been involved in three times that number in just three years. Nationwide, the number of multi-state lawsuits against the federal government has soared during the Trump administration.
“That’s just driven by the volume of the actions – illegal, unconstitutional executive orders and decisions by the Trump administration,” Healey said. “The difference here is that every week the Trump administration is doing things that hurt states.”
She also dismissed critics who say her preoccupation with Trump is preventing her office from dealing with local matters. She noted her office files thousands of lawsuits each year, so the 44 against the Trump administration represent only a tiny portion of the total.
“It’s easy for people to make that comment,” she said. “But I just suggest it’s unburdened by any actual knowledge of what we’re doing or achieving for the state and its residents.”
TEAM EFFORT
State attorneys general have been joining together to file lawsuits against the federal government for decades, but the numbers were never very big. Data compiled by Paul Nolette, an associate professor of political science at Marquette University who has done extensive research on state attorneys general, indicate the number of multistate lawsuits against the federal government was typically less than five a year and rarely rose above 10 a year.
In 1999, the Republican attorneys general launched their own association and the Democrats followed suit in 2002. The initial purpose of these politically oriented groups was fund-raising, but over the last seven years, first under former President Obama and now under Trump, the organizations have increasingly become clearinghouses for coordinated state legal actions against the federal government.
“They’re not just about fundraising anymore. It’s about strategy and figuring out priorities of AGs as a partisan force,” Nolette said. “When an executive order comes out [from the White House], these partisan organizations have become a forum for AGs to collaborate on a partisan basis to discuss strategy.”
Republican state attorneys general adopted this approach during the Obama administration, in one instance prevailing at the US Supreme Court to block an initiative to reduce carbon dioxide emissions from existing power plants.
Republican AGs made no secret that their goal was to block the government’s leftward turn under Obama. Scott Pruitt, the attorney general of Oklahoma from 2011 to 2017, who went on to serve as EPA administrator in the Trump administration, created an office of federalism to fight what he considered “federal overreach.”
Greg Abbott, who served as the Texas attorney general during much of Obama’s presidency and is now the state’s governor, said he was determined to hold the line against a federal government that he thought was growing too large, spending too much, and interfering too deeply in the lives of citizens. “I go to the office, I sue the federal government, and I go home,” he once said, boasting that he sued the Obama administration 25 times.
“Greg Abbott started every day with the view that his job was to sue Obama,” Healey said. “He was explicit about that. That’s very different from what’s happening now.”
Healey said she regularly talks with her counterparts in other states, including Republicans, and her staff talks to their staffs. The goal, she said, is to share information, decide whether litigation is warranted, and the best way to proceed. “One state might take the lead on a particular issue. New York, along with us, took the lead on the Census litigation, Oregon on some of the reproductive rights work, and that’s how we’ve been strategic about our resources,” she said.
“What you’ve seen the last couple of years is groups of states working similarly to combat unlawful activity that is hurting people in our states,” she said.
Still, the website of the Democratic Attorneys General Association doesn’t sound all that different from what Republican AGs were saying when Obama was in office. A roundup on the group’s website of what happened during 2017 – dubbed “the year of the Democrat attorneys general” – said the Democratic AGs were on “the front lines of the fight against the turbulent Trump administration’s disregard for the rule of law. Democratic AGs served as the only check and balance in 2017, holding the administration, corporations, and all institutions legally accountable to the people of their states.”
The number of multistate lawsuits filed against the federal government totaled 11 in 2015, 13 in 2016, and then jumped to 38 in 2017 and 29 in 2018. Nolette’s research indicates 71 multistate lawsuits had been filed against the Trump administration through May. Half that number were filed during all of Obama’s last four-year term.
Five of the 71 lawsuits against the Trump administration were led by Republicans and 66 by Democrats. By Nolette’s count, New York and California were the most active, followed by Massachusetts, Maryland, Oregon, Illinois, Vermont, Washington, Oregon, Maryland, Illinois, Minnesota, Iowa, New Mexico, Maine, Vermont, Connecticut, New Mexico, Rhode Island, Iowa, Minnesota, Maine, Virginia, and North Carolina. Many of the lawsuits target former EPA administrator Pruitt, who frequently sued Obama when he was a state AG.
Healey filed six of the lawsuits, joined but co-led another 13, joined 15 others, and intervened in 10. She successfully led a coalition of 19 attorneys general in suing the US Department of Education and Secretary Betsy DeVos for attempting to abandon rules intended to protect student loan borrowers victimized by predatory for-profit schools. The decision required implementation of the rule nationwide during fall 2018.
One of her few losses was a suit seeking to have the Department of Education discharge all student debt held by students at Corinthian schools, a set of for-profit colleges. A judge dismissed the case in October 2018, saying Massachusetts and other states lacked legal standing to file the action.
Healey’s other lawsuits deal with federal efforts to limit contraceptive coverage, to delay environmental regulations, to cancel the Deferred Action for Childhood Arrivals program, and to restrict travel to this country from select nations. One suit she filed with New York against the US Department of Commerce successfully blocked Trump administration efforts to include a question about citizenship on Census forms.
“If we don’t file a lawsuit to stop them from tinkering with the Census, we lose federal funding to our state,” she said, adding that it could also mean a loss of congressional representation.
WHAT’S THE COST OR TRADEOFF?
Most states acknowledge there is a cost associated with battling the Trump administration in court. According to a press report from last year, California spent $2.8 million in fiscal 2017 and $9.2 million in fiscal 2018 battling Trump. Washington reportedly spent $12 million as of last June, while Oregon’s cost was $1 million.
The most detailed accounting came from Texas, where Abbott and his successor as attorney general, Ken Paxton, sued the Obama administration 48 times between 2009 and mid-2016 at a cost of $5.6 million. Data released by Paxton included a case-by-case cost breakdown, with litigation over a Voter ID law the most expensive at $1.7 million.
Healey, however, refuses to put a price tag on her legal work against the Trump administration. “I have no idea how they arrive at those numbers,” she said of the other states. “I’ve done it with no extra dollars in the budget. There has been no special funding for this,” she said.
She also insists the Trump litigation has not detracted from other work her office does, rattling off how every dollar her office spends brings a multifold return.
Since fiscal 2016, Healey’s first full year in office, the attorney general’s budget has gone up nearly 16 percent, rising from $43.5 million to $50.3 million. The Senate and House budget proposals for her office for the next fiscal year, which starts July 1, are $1.5 million apart, with the House at $50.8 million and the Senate at $52.3 million. Close to half of Healey’s budget targets specific areas of focus, but there is no set aside for litigation against the federal government.
Healey said she appreciates the Legislature’s support. “They know I’m doing a lot of stuff,” she said. “They’re very appreciative.”
The attorney general said she hasn’t hired additional staff to work on the federal litigation, but she occasionally has tapped the services of two special assistant attorneys general who are paid by a third-party nonprofit called the State Energy & Environmental Impact Center at the New York University School of Law.
TO READ MORE ABOUT THE STATE ENERGY & ENVIRONMENTAL IMPACT CENTER, CLICK HERE.
The center was established in 2017 through a $6 million grant from Bloomberg Philanthropies, an endeavor founded by former New York mayor Michael Bloomberg. It is headed by David Hayes, the Interior Department’s former deputy secretary during the Clinton and Obama administrations.
Hayes said the center was formed “at the request of our state attorneys general who were worried about resources needed for such an across the board effort for federal legal challenges.” He said one of the concerns of the organization is the Trump administration’s rolling back of Obama-era environmental regulations. “The Trump administration came in and put those rules on ice while they considered whether they were going to change them,” he said.
The center provides funding for 14 fellows, all of whom are assigned to states with Democratic attorneys general. The fellows focus on clean energy, climate change, and environmental issues. Healey was one of a handful of AGs who received two fellows; hers are paid $72,450 and $94,500 a year. Healey’s fellows have worked on a number of cases, including a $171 million multistate settlement dealing with cheating on emissions tests and a federal lawsuit challenging the Trump administration’s plans to allow seismic testing for offshore oil and gas in the Atlantic Ocean.
Hayes said the center plans to remain in existence as long as Trump is in office. “We’re hoping we won’t be in business much longer,” he said.
Healey said she appreciated the center’s help, calling climate change “the existential crisis of our time.” She said the fellows provide badly needed resources, but are not on the frontlines in the Trump lawsuits. “If the question is – are you getting a bunch of outside entities to come in and do your work to fight Trump, the answer is no,” he said.