State attorneys general are the last line of defense against Trump

Vice President Kamala Harris has done what Hillary Clinton did before her — gracefully and powerfully conceded the presidential election to ensure that our Constitution is upheld in a time of deep political divide. But a concession and transfer of power after the electorate has voted does not mean an acceptance of Donald Trump’s agenda.

Democratic governors and state attorneys general could be the last line of defense when Trump takes power again in January and begins implementing his extremist agenda. States will need to stand up to challenge, delay and derail his party’s plans to further limit abortion rights, gut environmental protections, undermine the Affordable Care Act, and more.

As former chief of staff to California Gov. Gavin Newsom and a longtime adviser to Hillary Clinton, I’ve seen how state attorney generals can affect — and frustrate — national policy through litigation. State attorneys general of both parties have filed hundreds of lawsuits over the last several presidential administrations and won many national injunctions that tie the federal government’s hands. These officials stepped into a void left by congressional gridlock and limitations imposed by the Supreme Court on public interest groups’ ability to sue.

These lawsuits are not just a public relations tactic. Attorneys general succeed more than they fail, and they have prevented presidents of both parties from fully achieving their federal policy agendas. Republican state attorneys general beat the Obama administration in court 64 percent of the time. And of the 155 lawsuits filed by Democratic state attorneys general against the Trump administration, an impressive 83 percent were successful. 

In a second Trump administration, attorneys general in blue states will again be on the front lines. Resources will be limited and workloads heavy — which is why it’s vital that state attorneys general start preparing now by identifying legal vulnerabilities across Project 2025 and other extreme Republican plans, and the most effective legal arguments to block them. 

Many of those tools can be found in an unexpected place: The Republican Attorneys General Association’s legal toolbox. Over the past several years, the association’s members have weaponized new legal frameworks created by the Supreme Court to block some of President Biden’s most impactful policies.

Take the demise of Chevron deference.

Earlier this year, the Supreme Court overturned the decades-old Chevron doctrine in Loper Bright Enterprises v. Raimondo, ruling that courts are no longer required to defer to agency expertise when they interpret ambiguous laws. Republican attorneys general have already used Loper Bright to their advantage, including in recently challenging Title IX rules issued by the Biden-Harris administration to prohibit transgender discrimination in schools and health care. Democratic state attorneys general should be prepared to turn the tables and use Loper Bright to challenge many of the harmful and unlawful actions outlined in Project 2025, such as proposals to reduce overtime pay for workers and reverse protections for women’s right to emergency abortions.

Or take another legal tool increasingly used by red-state attorneys general: the Major Questions Doctrine. Fully articulated by the Supreme Court for the first time in 2022, the doctrine holds that federal agencies cannot decide matters of “major” economic or political importance without an unusually explicit congressional authorization. What a court deems “major” is largely subjective, and so, in practice, the doctrine amounts to a dramatic judicial intrusion into the rule-making process.

Democratic attorneys general should invoke the Major Questions Doctrine to constrain dangerous Trump administration policies, too. If, for example, Trump attempts to disqualify abortion providers from Medicaid, state attorneys general could argue the proposal poses a “major” political question — and since it lacks explicit congressional approval, it can't stand. 

No one will be shocked if the right-wing majority on the Supreme Court that just invented a sweeping version of presidential immunity out of whole cloth changes its tune about executive power as soon as a Republican is in office. But even if that happens, the litigation process will still dramatically slow down a second Trump administration.

And states have the power to push a regulatory agenda. For example, years before the United States established a federal air quality law, California established its own nation-leading air-pollution standards that other states adopted. Eventually, the Environmental Protection Agency did, too. Decades later, when I worked with Gov. Newsom, we knew we had to Trump-proof California’s environmental laws. So we issued executive action to phase out gasoline-powered cars by 2035, making California the first state committed to transitioning to electric vehicles. Other states have now adopted similar standards, and the Biden administration has used California’s regulatory efforts to advance its environmental agenda. 

Democratic state attorneys general will be pivotal in shaping national policy and protecting the rights and freedoms of Americans in all states. As former Virginia Attorney General Mark Earley (R) once put it, “the most powerful elected position in the United States today ... is not the Congress, the House of Representatives or the Senate, but is among the fifty state attorneys general.”

The preservation of our democracy now depends on them. Now is the time to get started. 

Ann O'Leary is a partner at Jenner & Block and co-chair of their Government Controversies and Public Policy Litigation practice. Previously, she served as the co-director of Hillary Clinton's presidential transition team and was California Gov. Gavin Newsom's first chief of staff.