LANSING (MIRS News) – If it’s difficult to track the multi-state lawsuits Attorney General Dana Nessel has hitched Michigan’s wagon to this year, it’s understandable, as that litigation escalated under former President Barack Obama and is now “off the charts” under President Donald Trump, according to one expert.
“If you count up the total number of suits against Obama in his eight years, Democratic AGs have already surpassed that in two and a half years of Trump. So the numbers have gone way up,” said Paul Nolette, associate professor of political science at Marquette University, who also runs attorneysgeneral.org, where he tracks these lawsuits dating back to former President Ronald Reagan.
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That’s true in Michigan as well, because according to Nolette’s database, Michigan has been involved with 16 multi-state suits in some fashion under the Trump administration, and 26 cases under Obama, compared to six cases under former President George W. Bush.
Bush’s term largely overlapped with former GOP Attorney General Mike Cox, who served from 2003 to 2011. And Obama’s time in office completely overlapped with the tenures of Republicans Cox and Bill Schuette.
But while political differences do factor into which state AGs enter which suits against which presidents, Nolette also sees this trend as the “institutional development” of attorneys general, who have learned over time to band together to share resources and become more sophisticated in taking on Washington, D.C.
The 16 cases Michigan is involved in under Trump is out of the 94 total suits that Nolette has listed under Trump, according to data current as of Nov. 2. Michigan is listed as a plaintiff on nine of the 16 cases.
Nessel’s office announced a few weeks ago two more cases they’ve joined in recent months, including teaming with California to challenge the feds over “grave concerns over the conditions in which children are kept in immigration custody,” as well as another immigration-related case.
Of the 16 cases Michigan has been involved with in some way under Trump, 14 are part of a Democratic AG-led coalition. The other two are in GOP-led AG suits. Nessel took office in 2019 and Trump in 2017.
Michigan was involved in 26 cases under the Obama administration. The 26 cases are out of the 78 total under Obama listed in the Nolette database. And of the 26 cases, all but three were part of a GOP AG-led coalition. The other three involved a bipartisan group.
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Why The Increase, And What Are The Advantages?
With the Trump and Obama presidencies, Nolette said there’s been “pretty aggressive executive action” taken by both presidents. And those sorts of actions, he argued, are on “more legally shaky ground than if the both legislative and executive were on the same page.”
Former state solicitor general John Bursch, who worked under Schuette, said when Congress grinds to a halt, executive orders and agency regulations become other ways to advance an agenda. And that’s where some of these AG-led challenges come in.
Another factor is the formation of the Republican Attorneys General Association (RAGA) and Democratic Attorneys General Association (DAGA).
Through the growth of DAGA, for example, “we have helped build opportunities for them to build relationships and get to know each other better, and that has then helped them . . . work together,” said Lizzie Ulmer, communications director for DAGA, who emphasized DAGA itself isn’t involved with the suits or investigations spearheaded by the AGs.
For Nolette, he sees all “upside and no downside” with the AGs banding together on these suits.
“If you’re suing, then first of all, you might win,” Nolette said, adding GOP attorneys general had a “high batting average” against Obama and now Democratic attorneys general are having similar success against Trump.
Nolette tracks wins and losses in his database, categorizing wins as obtaining success on the merits or on an injunction, winning on appeal or forcing an agency reversal.
According to his database, Michigan was on the winning side in a case under Obama nine times, and under Trump seven times.
As far as losses – on the merits or on a denied injunction, or on an appeal or a procedural failure – Michigan has been involved in three cases under Trump when that’s happened, and on ten occasions under Obama.
What Are The Political Calculations?
For most attorneys general, the question before they sign on is how the issue impacts their respective states’ residents, Ulmer said.
Nessel spokesperson Dan Olsen said in every instance before Michigan participates in a multi-state suit — or even before jumping onto a letter challenging a rule, law or position or an amicus brief written by another state — the AG determines if Michigan has a “compelling state interest” in the action.
But joining these actions have benefits for the individual attorneys general themselves.
“If they’re trying to appeal to their political base . . . it’s an advantage to say, I took on Trump,” Nolette said.
Nolette said the attorneys general also may be “thinking in national terms” when they join the multi-state suits, which he said can provide additional ammunition to a particular side and catalyze a movement.
For instance, on the Title X funding the Trump administration scaled back that ultimately affected Planned Parenthood, Democratic AGs won an injunction to block that, Nolette said.
Now, he said, “there’s now an argument that fellow Democrats, even non AGs, can use,” such as, “look at this, even the courts are on our side.”
On the other side, when GOP AGs began taking on Obama’s Affordable Care Act, a lot of the arguments they put forward “were seen as ridiculous,” Nolette said. But they won in lower courts and even up to the U.S. Supreme Court, when the high court struck down the required Medicaid expansion piece.
While there’s been a flurry of Democratic AGs joining suits against Trump, Nolette noted the Democratic attorney general for Mississippi, Jim Hood, hasn’t joined many of these suits, as Trump carries high approval ratings there. Hood is also running to be elected governor there Tuesday.
But Nolette said these aren’t always political decisions, as he said attorneys general constitute an “interesting mix” of law and politics.
“Politics inevitably enters the conversation, but it’s not like it’s all politics . . . there’s that element of law since they’re legal officials,” he said.
Nolette said litigation taken against companies is often more cooperative and less partisan. One example is the antitrust case against Google, which Nessel announced she and 49 attorneys general are litigating.
Bursch said multi-state cases – particularly in the consumer protection cases against companies – could result in millions of dollars coming back to Michigan. He mentioned the settlement with the tobacco industry, which still provides yearly cash flow to the states.
Olsen also noted multi-state suits with other AGs that Michigan takes part in also involves complaints against “offending persons, companies, corporations, etc.”
While Bursch said, “certainly some of it is political” when it comes to the decision to take these cases, he also said “some of it is political but motivated by underlying differences in policy.”
For instance, Nessel has also yanked Michigan from at least 12 cases in the past year, according to what her office has announced. Those cases include those Nessel said “limit a woman’s reproductive rights,” allowing discrimination based on sexual orientation and “violate the separation of church and state,” as well as four cases filed against the U.S. Environmental Protection Agency (EPA) “originally filed by her predecessor.”
Efficient Litigating For AG Offices
Bursch said whether it’s multi-state suits, or states signing onto amicus briefs at the U.S. Supreme Court (SCOTUS), these actions can achieve economies of scale.
“It was a good way to pursue lots of things for the people of Michigan without having to expend extra dollars and have a larger staff,” Bursch said.
He said multi-state action might involve strategy calls, sharing of work product and thus more expenses than signing onto another state’s amicus brief. That more or less involves reviewing the argument put forth and putting the state’s name to it if the AG agrees.
Nolette said the lead state on these lawsuits typically bear the brunt of the legal work. And which state takes lead can depend on the size of the office – New York and California are the big Democratic players, and likewise Texas on the Republican side – but also by specialty. For instance, Nolette said Vermont has a “tiny office” but they’re known for specializing on environmental issues.
Asked what Michigan is known for specialty-wise, Nolette said while the state’s AG office was under GOP control, it was known for developing expertise in energy and environment cases from the Republican point of view, Nolette said.
As one example, Michigan under Schuette was the lead plaintiff and winner on a case against the U.S. Environmental Protection (EPA) that went all the way to SCOTUS challenging the federal regulations on power plant emissions.
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