In the three years President Donald Trump has been in office, state attorneys general have teamed up to block his administration’s policies more than 90 times. That’s more multistate lawsuits than the administrations of Barack Obama, George W. Bush and Bill Clinton faced in each of their eight years in the White House.
Since Phil Weiser became Colorado’s attorney general in January, the Democrat has joined his counterparts in other states in challenging many of the administration’s most controversial policy decisions. In 2019, Colorado joined or filed over a dozen lawsuits against government agencies to halt new rules, many of them related to immigration, the environment and health care – especially reproductive health. Weiser said he hasn’t deliberately targeted these policy areas but has been “put on defense” by the federal government’s rule changes.
“By definition, we are reacting, and so I don’t actually have an affirmative agenda,” he said. “I do have an aspiration that I wouldn’t need to file any such lawsuits.”
Weiser said the lawsuits are filed in response to policies he believes are illegal and that hurt Colorado, but that there are some themes to be gleaned from the lawsuits he has participated in so far. “I care a lot about protecting civil rights, protecting healthcare and protecting our land and water,” he said.
HEATED HEALTH CARE BATTLES
On Wednesday, the Fifth Circuit Court of Appeals dealt a blow to the Affordable Care Act, which Colorado signed on to defend during Weiser’s first month in office. The appellate court ruled the individual mandate unconstitutional and sent the case back to a lower court judge who had struck down Obama’s signature health care act in full a year ago. The case is one of two Weiser said he is most concerned about going into 2020.
The state had more success in another health care-related case Weiser joined in May. The multistate lawsuit challenged a policy to expand a “conscience rule” that would have made it easier for health providers to refuse to perform services due to moral or religious objections. A federal judge in New York struck down the rule in November.
In March, Colorado joined two lawsuits to fight restrictions on abortion access and funding. One targeted a Title X gag rule that would prevent funding recipients from referring patients to abortion services. The gag rule went into effect in July after a preliminary injunction was overturned, and oral arguments were heard in the case in late September.
IMMIGRATION LITIGATION
Weiser also challenged the government’s immigration policies early in his first year. Colorado was one of 16 states in February to block Trump from redirecting funds to build a border wall.
Colorado sued the Department of Justice in March for withholding public safety funds from states that refuse to cooperate with immigration officials’ efforts to find out the immigration status of people in jails or those soon to be released from jails. That case is still pending in federal court in Colorado.
Also in March, Weiser signed on to a lawsuit first filed in 2017 challenging Trump’s roll-back of the Deferred Action for Childhood Arrivals initiative. Weiser’s Republican predecessor, Cynthia Coffman, didn’t back the DACA lawsuit when it was originally filed, but then-Governor John Hickenlooper signed the state on to the legal challenge. The U.S. Supreme Court heard oral arguments on DACA in November.
More recently, Colorado joined a lawsuit filed in Washington state in August challenging Trump’s “public charge” rule, which would make it harder for immigrants to obtain visas if authorities deem them likely to receive public benefits. Two other multi-state lawsuits were later filed in New York and California challenging the same rule. A federal judge in Washington granted a preliminary injunction in October blocking the rule from taking effect.
UP IN THE AIR
Starting in the fall, the state joined a spate of lawsuits targeting policies on the environment and pollution, all of which remain pending. Colorado has joined a challenge to the EPA’s Affordable Clean Energy rules, which roll back Obama-era limits on fossil fuel power plants. The state has also signed on to lawsuits to block Trump administration changes to the Endangered Species Act and light bulb standards.
In September, 23 states including Colorado sued to block a National Highway and Traffic Safety Administration regulation that says federal law preempts state laws on vehicle emissions, targeting California’s stricter greenhouse gas and zero-emission vehicle (ZEV) standards. Colorado adopted California’s ZEV standards in August, making it the 12th state to do so.
At the same time as the NHTSA regulation was announced, the Environmental Protection Agency revoked a waiver that had allowed California to adopt its stricter standards, and on Nov. 15, the EPA became the target of a separate lawsuit, which Colorado also joined.
Weiser said the vehicle emissions lawsuit against the EPA is another he’s concerned about, both for its potential effects on air quality and for what it means for the state’s authority to adopt its own emissions standards.
That EPA case in the D.C. Circuit is also being watched closely by the Colorado Auto Dealers Association, a car industry group that has opposed
Colorado’s moves to adopt the California standards.
“We expect the federal government to prevail there, and our national organization has joined with the global auto manufacturers to intervene in that case,” said Matthew Groves, vice president of legal, regulatory and compliance at CADA.
MORE CASES, MORE CRITICS
These lawsuits are filed on “pretty quick timetables,” according to Weiser, so it’s hard to predict how many, or which, of the administration’s policies Colorado will challenge in the year to come.
He did say the state is likely to pursue a case involving civil and victim rights under Title IX. Colorado adopted stricter protections for victims of campus sexual assault this year, and the case could become another opportunity to assert the state’s authority in the face of a federal government seeking to preempt state laws, Weiser said.
The surge in lawsuits brought by state attorneys general has attracted some criticism.
“If we become a part of all of those [lawsuits], it’s going to yield an enormous budget for the Colorado Attorney General’s office,” said CADA’s Groves. “Money is going to have to come from somewhere, and that will trickle down into affecting all of the economy.”
However, Weiser’s predecessor, Coffman, told the Colorado Sun in June that adding the state to an existing lawsuit “really is not expensive or time consuming.”
All but one of the lawsuits Weiser has filed against the Trump administration were initiated by AGs in other states, with California and New York leading the way.
Money isn’t the only reason some are wary of the uptick in state AG activity. “As AGs increasingly use litigation as a method of policymaking, it becomes more difficult for voters to know who to hold responsible for these policy decisions,” Paul Nolette, a political scientist at Marquette University and widely cited expert on state attorneys general, wrote in the Washington Post back in 2015, when multistate lawsuits were climbing during Obama’s second term but hadn’t yet reached their Trump-era peak.
University of Colorado law professor Suzette Malveaux sees the recent actions by state AGs as a response to executive overreach.
“Given the draconian policies around immigration, civil rights, and other major issues, it is no surprise that state AGs are increasingly seeking injunctions to stop Trump policies nationwide,” Malveaux said in an e-mail.
— Jessica Folker