The constitutional challenge to the Affordable Care Act started with a conference call months before the bill even became law.
Henry McMaster, then the attorney general of South Carolina, got 10 of his fellow Republican attorneys general on the phone in December 2009. He told them that he wanted to challenge the so-called “Cornhusker kickback” that was being proposed in the U.S. Senate to win the vote of then-Sen. Ben Nelson (D-NE). After they agreed to come onboard, the attorneys general sent a letter to congressional leadership and warned that they would challenge the provision if it made it into the law.
The kickback was taken out, but it gave then-Florida Attorney General Bill McCollum an idea, he told TPM recently in an interview. His office had already been studying whether the law’s individual mandate and Medicaid expansion might be unconstitutional. McCollum called McMaster and asked if he wanted to join him in challenging the law’s most crucial components.
McMaster agreed. Once again, they rounded up a few of their colleagues in other states, including then-Nebraska Attorney General Jon Bruning and Texas Attorney General Greg Abbott, for another call. Once the core group was formed, they started shopping the lawsuit — being prepared for a law that hadn’t actually been passed yet — to others over the following months.
As more states came onboard, the chiefs of staff for the attorneys general began holding weekly conference calls to keep things running smoothly. Different states wanted to vet different briefs or write parts of the complaint. It wasn’t always smooth — Abbott’s office scoffed at McCollum filing the lawsuit in Florida instead of Texas, according to Josh Blackman”s “Unprecedented” — but the same day Obama signed the law, March 23, 2010, the states filed their lawsuit.
They weren’t totally successful, but they did score a victory. The Supreme Court didn’t overturn the law, but it made the Medicaid expansion optional. More than 20 Republican-led states have since opted out, leaving millions without health coverage but in what conservatives consider a significant victory. Beyond the outcome, though, McCollum said, the Obamacare lawsuit set a template for states to come together to sue the Obama administration over policies that they oppose.
“The more we put together, we felt it was stronger. It looked like a stronger case,” McCollum told TPM. He said he thought it had been as an influence on the similar lawsuits that have followed. “They see the success, if you will, of the Affordable Care Act lawsuit, saw that we could get together and do this together as a group on our own. … I think that’s not at all beyond the norm now.”
It is the latest evidence of the new normal that some say has developed during the Obama administration: GOP state attorneys general suing on behalf of their states to block the federal government. Immigration executive orders, EPA rules on carbon pollution and, most famously, the Affordable Care Act, are areas where GOP attorneys general have used their roles as chief legal officers to make their states parties to the lawsuits. This week, their ability to influence the national debate was reinforced when a federal judge ruled against Obama’s executive actions on immigration in the lawsuit filed by Texas and other Republican-led states.
States becoming the de facto agents to challenge federal policymaking and coordinating with each other to do so is a trend that has really taken hold during the Obama administration, Paul Nolette, a political scientist at Marquette University who has studied attorneys general, told TPM.
The numbers that Nolette has compiled, which also included some antitrust and consumer cases, seem to back it up. In the 1980s, there were only a handful of multi-state cases. The number rose through the 1990s and 2000s, but has reached new highs during the Obama administration: 2010 (52 multi-state cases) and 2013 (46 multi-state cases) are the two most active years on record.
Historical trends in multi-state cases.
(Image and data via Paul Nolette)
“I would use the word institutionalized or entrenched to describe this,” Nolette said. “Now that you have a Democratic president, that allows Republican attorneys general to have a focused, common enemy. You’ve seen this partisan, polarized deep connection with like-minded coalitions becoming really solid in a way that they weren’t before.”
It’s not that states had never sued the federal government before; in fact, a Massachusetts lawsuit against the EPA under President George W. Bush was a key catalyst to what Republicans are now doing during the Obama administration because it set an important legal precedent that made it easier for states to get their cases heard. But it seems to be becoming standard procedure in a way that it hadn’t been.
“The state role has become more robust,” Heather Gerken, a law professor at Yale University, told TPM. “We are seeing a more robust resistance. The Republicans have lurched much further to the right, and I think it’s fair to say that has been driven by having a Democratic president.”
The degree to which this is a new phenomenon, however, is debated. James Tierney, a former Maine attorney general who now heads Columbia University’s National State Attorneys General Program and is viewed as a foremost expert on attorneys general, told TPM that he didn’t think the trends being observed by others were particularly different from what had been done before. He pointed specifically to the Democratic attorneys general activity during the second Bush administration, which did reach new highs (40 cases in 2008) but has since been exceeded during the Obama administration.
“During the GOP Administrations — especially Bush, 43, when he did everything he could to preempt the states — almost all AG’s and AGO’s worked feverishly and everyday to block his moves and, when possible, to bring their own suits,” Tierney said in an email. “Right now — where the Democratic President is becoming more active and pushing his boundaries — GOP AG’s are attacking and Dem AG’s are defending with the full support of their bases.”
The Supreme Court opened the door by making states the preferred vehicle for such litigation. Add an increased polarization among the attorneys general, and you have a political and legal system that has set up a clash between states being led by one party and a federal government led by the other.
“I think attorneys general offices are becoming more politicized than they used to be. This is a way for them to make political hay,” Bill Marshall, former deputy White House counsel and now a law professor at the University of North Carolina, told TPM. Technology has also played a role. “You press a button, and you can communicate with all 50 states. It makes it incredibly easy to coordinate.”
The litigious Republican attorneys general cadre can trace its roots back to the tobacco wars of the 1990s. GOP officials were dismayed by how their Democratic colleagues pursued the issue, favoring legal action over legislative, and in 1999, they founded the Republican Attorneys General Association. Over the last 15 years, following broader political polarization, that group has become more powerful than the historic National Attorneys General Association, serving as a center for Republican attorneys general to coordinate with each other. Mirroring the polarization of the last two decades, Democratic attorney generals created their own separate association in 2002.
While Republican attorneys general have mastered the process, the current trend began with Democratic attorney generals during the Bush administration. A group of 12 states, led by Democratic attorneys general, sued the Bush administration in attempt to force the EPA to regulate greenhouse gases. As part of its 2007 ruling in favor of the states in Massachusetts v. EPA, the Supreme Court determined that states had what it called “special solicitude” — making it easier for states to get cases in front of the Court.
At the same time, the 2005 Class Action Fairness Act made it more difficult for private parties to pursue class-action lawsuits, Nolette said. Put those two things together, add in Obama’s election and a less corporate-friendly federal government, and you had the recipe for a new normal in state-federal litigation.
“As it’s been harder for private parties to get into court, they’ve started to realize that ‘Hey, we’re having trouble getting into court, why don’t we partner with our friends in the state AGs office,'” Nolette said. The New York Times, which has been investigating attorneys general recently, reported in December on how energy companies have helped coordinate the legal challenges against the Obama administration’s EPA rules, as well as drafting letters for the attorneys general to send to the White House and urging them to push through legislation at the statehouse.
One of these lawsuits, brought by Texas Attorney General Greg Abbott over EPA regulations on greenhouse gases, typifies that new normal. As the Los Angeles Times reported, the Texas state government was approached by a newly formed group representing energy firms on Dec. 30, 2009. That’s about five weeks before Texas’s lawsuit was filed, though they publicly denied that they needed any prompting from outside groups.
Texas Gov. Greg Abbott, who filed the immigration lawsuit as attorney general. (AP Photo/Austin American-Statesman, Deborah Cannon)
“I’d like to begin the coordination process,” a lawyer representing the group, called the Coalition for Responsible Regulation, said in an email to state officials. “Plus, of course, we would like to see state petitioners involved, and Texas is an obvious candidate.”
Legal challenges to the greenhouse gas regulations, led by Texas, eventually attracted 14 other states, almost all of them led by Republicans. With the insularity afforded by the Republican attorneys general group, they are able to quickly coordinate and file legislation against any Obama administration policy that they anticipate opposing.
On Nov. 20, President Barack Obama announced a series of executive actions to address undocumented immigrants currently in the United States. The day before, Republican governors were already rumbling that they wanted to sue the president over the not-yet-taken action.
And less than two weeks later, 17 states filed a joint lawsuit against Obama over those new immigration policies. This week, they scored a win when a federal judge in Texas ruled in their favor. The Obama administration has said it will put the actions on hold as the legal fight sorts itself out.
“It’s surprisingly fast and surprisingly strong,” Gerken said.
The coordination was underway well before Obama formally took his actions. It takes more than two weeks to craft such a lawsuit.
“They knew what was coming, they were talking about it,” Nollette said. “That sort of coordination is really what’s new here.”
From the GOP point of view, of course, the Republican officials are simply reacting to unprecedented overreach on the part of the Obama administration. In their challenges to health care reform and immigration actions, they have alleged that the Democratic Congress of 2009 and 2010 or President Obama stretched well beyond their constitutional limits in trying to mold federal policies.
“I think the uniqueness of this has been that this president, more than any other president, Republican or Democrat, has exercised an expanded view of executive authority beyond the norm,” McCollum said. “That’s the environment we’re in. … It’s just natural that he’s going to draw, first of all, state pushback to that and that it would be the Republicans.”