June 14, 2017

Resistance from State Attorneys General Reminds Trump that No One is Above the Law

by Ngozi Esomonu, Lawyers’ Committee for Civil Rights Under Law

The anti-Muslim travel ban, the 2018 budget proposal, and this month’s religious liberty executive order are just three of the many Trump Administration policies that spell discrimination for America’s most marginalized. Resisting these suppressive policies, are attorneys general from states all over the country from Eric Schneiderman in New York, to Maura Healey in Massachusetts, to Bob Ferguson in Washington State. Their primary tool of resistance is coalition-building with fellow state attorneys general. Once in a coalition, they utilize their joint political powers to pressure federal officials into supporting their position.

Beyond coalitions, however, state attorneys general use the threat of litigation as a guard against federal discrimination. And when their threats fail to deter, these state officials have not hesitated in pursuing litigation as a final step. With a Republican-dominated Congress and executive branch, attorneys general have emerged as the primary agents of resistance to the Trump administration’s damaging brand of conservatism.

Take for example, Trump’s anti-Muslim travel ban. As a nation of immigrants, with a significant Muslim population, it was no secret that Executive Order 13769, (which suspended immigration from seven Muslim countries for three months and the Syrian refugee program indefinitely) would trample on individual rights. This, however, did not dissuade the president from issuing his order, and the Republican-led Congress, for the most part, remained silent on the issue. State attorneys general therefore became the leading voice of opposition.

Washington State’s Attorney General Bob Ferguson filed a suit against the Trump administration just 10 days after Trump implemented the executive order. Months later, Oregon, California, New York and Maryland formed a coalition and joined the suit seeking a restraining order to prevent enforcement of the ban. Their filing revealed a willing to protect the rights of Muslim citizens from federal intrusion as well as a willingness to keep their state’s immigrant families together. Their efforts were ultimately successful when a federal district judge granted the temporary restraining order against the order’s enforcement.

Hawai’i’s state Attorney General also pursued litigation after Trump unveiled his revised version of the executive order. This time, though, instead of joining the suit as co-plaintiffs, the coalition of state attorneys general filed an amicus brief opposing the order as discriminatory. Again, the state attorneys general efforts were affirmed when federal judge Derrick Watson reinstated the nationwide restraining order against the ban until the resolving of Hawai’i’s lawsuit.

You can gauge how effective state attorneys general are through the travel ban resistance movement. What made these attorneys general so successful was their relentless approach to fighting the ban and the divisive sentiments it promoted. You can see how dedicated they were just by reading their Twitter pages and official websites. The sheer amount of space devoted to the travel ban resistance is immense. The next arena where state attorneys general have showcased a similar dedication is healthcare reform.

Trump’s 2018 budget proposal stands to slash federal funding for programs that traditionally spend more money on women than men (such as the defunding of Planned Parenthood). The result is that women will be disproportionately affected by budget cuts, particularly poor women of color. New York Attorney General Eric Schneiderman threatened to sue Trump regarding the defunding of Planned Parenthood, even before Trump revealed his proposed budget.

Lastly, state attorneys general have championed the struggle for transgender students’ rights within schools. A coalition of 19 state attorneys general supported a transgender student’s right to use the bathroom, consistent with his gender identity, by filing a multistate amicus brief in the Supreme Court of the United States. While the case is yet to be resolved, the brief functions as a key piece of opposition to Trump’s withdrawal of federal protections for transgender students implemented by the by the Obama Administration.

In all, state attorneys general have become a primary force guarding citizens’ rights from government intrusion. As the Trump Administration continues to unveil policies that target the rights of various groups, we can expect state attorneys general to continue their proactive resistance to this discrimination. We can expect them to hold the current president accountable.