Policy in the States: The Rise of State-Led Litigation Against the Federal Government

In today’s polarized political climate, Democrats and Republicans frequently clash in Congress, the executive branch, and the Supreme Court. While the impact of partisan polarization on the federal government is well-documented, its consequences for state governments are often overlooked. One notable trend at the state level is the increasing use of litigation against the federal government to achieve policy goals.

State attorneys general (AGs), traditionally seen as the chief legal officers of their respective states, have become powerful players in shaping policy through litigation. The growth of the “litigation state” began in the 1970s and 1980s, when the federal government expanded regulatory powers but lacked the infrastructure to enforce these policies. This led to increased enforcement and regulatory responsibilities for states, with AGs taking on a central role in representing their states’ legal interests.

Using litigation by AGs as a policy-making tool gained prominence in the mid-1990s, when over 40 states initiated lawsuits against the tobacco industry. This ultimately resulted in a national settlement that included strict federal regulations on tobacco labeling and marketing, as well as financial relief for states. The tobacco litigation marked the first significant instance of states using litigation to create national policy.

In recent years, the number of state-led lawsuits against the federal government has continued to rise. Data from Dr. Paul Nolette’s database on multi-state litigation shows that most of these lawsuits are driven by partisan motivations. The Obama Administration faced 78 multi-state lawsuits, with only 22 filed by Democratic-led states or in a bipartisan manner. The Trump Administration saw 157 multi-state lawsuits, with only three coming from Republican-led states or in a bipartisan fashion. As of February 1st, 2023, the Biden Administration has experienced 60 multi-state lawsuits, with only six being bipartisan or started by Democratic AGs.

Examples of State-Led Litigation Shaping Policy

Climate Change Litigation: Several states have initiated litigation against major fossil fuel companies, alleging that these corporations have contributed to climate change by promoting the use of fossil fuels and concealing their environmental impact. These lawsuits aim to hold the industry accountable for the environmental damage and force them to contribute to climate change mitigation efforts. Successful litigation could lead to significant policy changes and set a precedent for future environmental lawsuits.

Opioid Crisis Litigation: State AGs have also taken on the pharmaceutical industry, filing lawsuits against opioid manufacturers and distributors for their role in the opioid crisis. These lawsuits seek to hold companies accountable for deceptive marketing practices and failing to report suspicious opioid orders. Successful litigation has resulted in multi-billion-dollar settlements, which have been used to fund addiction treatment and prevention programs, shaping state-level policies to combat the opioid epidemic.

The Political and Public Policy Impact of Lawmaking via Litigation as Compared to Legislation at the State Level

Lawmaking via litigation, as opposed to traditional legislative processes, can have profound political and public policy implications. This approach to policy-making can significantly affect the balance of power between branches of government and lead to the establishment of policies that may not have been workable through the standard legislative process.

First, litigation enables AGs to bypass grid locked legislatures and achieve policy goals that may not have had the support in more traditional policymaking venues. Where a divided government cannot agree on critical issues, litigation can provide a means for addressing these concerns without requiring the consensus of the legislative branch. This could cause policy outcomes that reflect the preferences of the attorney general and their supporters, rather than the broader electorate.

Second, policy outcomes reached through litigation tend to be more durable than those enacted through legislation. Court decisions, particularly those at the federal level, often set precedent and are less susceptible to the political whims of changing administrations or legislative majorities. This can lead to lasting policy changes that would be difficult to reverse through subsequent legislation.

Potential Separation of Powers Concerns About Allowing a State Attorney General to Establish Public Policy via Litigation

Using litigation as a means of public policy-making raises concerns about the separation of powers. When AGs establish policy through the courts, they effectively circumvent the legislative process designed to create a system of checks and balances among the branches of government.

By allowing AGs to act as policymakers through litigation, there is a risk of concentrating power in a single individual or office, potentially undermining the democratic process. This could lead to decisions being made without the proper input or scrutiny from other branches of government, resulting in policies that may not reflect the desires or needs of the electorate.

Moreover, the use of litigation for policy-making can blur the lines between the roles of different branches of government. When AGs enact policy through the courts, they may be seen as encroaching on the domain of the legislative branch, undermining the principle of separation of powers.

How to Use Litigation to Your Advantage

Organizations and advocacy groups can take advantage of the growing trend of state-led litigation by following these steps:

Learn about your state’s Attorney General: Understanding your state AG’s background, priorities, and election cycle is essential to use their efforts for your benefit. If your current AG’s goals do not align with your organization, consider supporting their opposition in the next election.

Learn about other states’ Attorneys General: Since federal court decisions impact all states, it’s crucial to explore AGs from other states that may align with your organization’s goals. This strategy becomes particularly relevant as most state-led litigations are multi-state cases, enabling AGs to join forces and share resources.

Find Your Audience: Utilize targeted data, such as national voter files and consumer data files, to identify supporters who can push your agenda at the state level. Effective communication strategies are key to mobilizing your audience to support state-led litigation.

Put Your Calls to Action Where Your Mouth Is: Engage in political campaigns, write letters, and participate in community outreach to garner support for an AG who shares your organization’s goals. Building relationships with AG candidates and their inner circle can ensure your message is remembered once they are in office.

Be Consistent: Maintain regular communication with your elected AG and your membership base to ensure that your organization’s mission stays at the forefront of their mind when making policy decisions. Continuously updating your communication strategy can help your group remain influential, even after the election cycle.

In conclusion, the growth of states using litigation as a policy venue has undeniably empowered AGs to effect lasting policy changes. However, this trend raises numerous concerns about the separation of powers, the potential erosion of the attorney general’s primary role, and the politicization of the courts. It is crucial to consider the implications of this shift and engage in a thoughtful discussion about the appropriate role of AGs in the policy-making process. Balancing the need for effective policy solutions with the importance of preserving the integrity of democratic institutions and the rule of law is essential for the continued health of American democracy.

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