2017—The Year of Democratic Attorneys General (and What Lies Ahead in 2018)
December 15, 2017
As you prepare coverage and commentary to close out 2017 and the first year of the Trump presidency, here is a review of how and why the role of Democratic Attorneys General became more important than ever before—and how we, at the Democratic Attorneys General Association (DAGA), are ready for what lies ahead in Washington, D.C. and in the states in 2018.
Democratic Attorneys General are on the front lines of the fight against the turbulent Trump administration’s disregard for the rule of law. Democratic AGs served as the only check and balance in 2017, holding the administration, corporations, and all institutions legally accountable to the people of their states. They mounted legal challenges to attacks on Muslims, trans troops, DACA recipients, women’s health, students, the environment, workers, and consumers. Highlights of Democratic Attorney General actions are below.
- Fighting for Reproductive Justice
In October, California Attorney General Xavier Becerra, Massachusetts Attorney General Maura Healey, Pennsylvania Attorney General Josh Shapiro, and Washington Attorney General Bob Ferguson filed four separate lawsuits over Trump’s rollback of the contraception mandate and the discriminatory effect this will have on women.
“The expanded exemptions selectively target women by nullifying provisions of the ACA intended by Congress to guarantee women equal access to preventive medicine,” said AG Healey. “The expanded exemptions will have the effect of denying women access to medically necessary care while leaving coverage for men unchanged.”
In November, Democratic AGs in California, Delaware, Maryland, New York, and Virginia filed an amended complaint to protect access to birth control, following new Trump administration rules that would deny contraceptive access by allowing employers to interfere with women’s healthcare choices. Following the lawsuit, the same group of Democratic AGs filed a motion for a preliminary injunction with the U.S. District Court for the Northern District of California.
Just last week, as a result of a lawsuit filed by Pennsylvania Attorney General Josh Shapiro, a federal judge in Pennsylvania granted a nationwide injunction, blocking the Trump administration from enforcing new rules that would allow virtually any employer to claim a religious or moral objection to the Affordable Care Act’s birth control coverage mandate.
This week, New York Attorney General Eric Schneiderman led a coalition of 12 Democratic AGs in telling the Trump administration that it has no authority to block two young immigrant women in federal custody from obtaining abortions. In October, the coalition of Attorneys General filed an amicus brief with the D.C. Circuit in Garza v. Hargan, in support of Jane Doe, a 17-year-old unaccompanied minor in federal custody who was seeking an abortion. The D.C. Circuit then overruled the Trump administration and cleared the way for Jane to obtain her abortion.
- Standing up for Students by Taking on Betsy DeVos
Democratic AGs pushed Secretary DeVos to maintain critical protections under Title IX for campus sexual assault survivors. When rumors swirled about impending rollbacks in Title IX protections, Democratic AGs wrote Secretary DeVos in a 20 Democratic AG letter urging DeVos to maintain the Obama-era guidance. And even after DeVos went against the advice of the nation’s leading law enforcement voices to rescind Title IX protections, Democratic AGs spoke out quickly to show support for survivors, students, and campuses nationwide.
In July, 19 Democratic AGs filed a lawsuit against Education Secretary Betsy DeVos for rescinding Obama-era protections that would have allowed students at for-profit colleges to petition for loan forgiveness if the college “misled them or engaged in other misconduct in violation” of other laws. The complaint alleges that the Department of Education violated federal law by abruptly rescinding its Borrower Defense Rule, which was designed to hold abusive higher education institutions accountable for cheating students and taxpayers out of billions of dollars in federal loans.
Just last week, Illinois AG Lisa Madigan, Massachusetts AG Maura Healy, and New York AG Eric Schneiderman sued the Education Department and Secretary Betsy DeVos for breaking the law in not granting loan relief to students defrauded by Corinthian Colleges and other defunct for-profit school. Separately, California AG Xavier Becerra filed a parallel complaint in the U.S. District Court in Northern California. According to Becerra, 13,000 former Corinthian students in his state are waiting for the federal government to forgive their loans.
- Protecting Access to Healthcare
In May, 16 Democratic AGs moved to intervene in a federal lawsuit, House v. Price, that directly ties to the Affordable Care Act. The lawsuit, filed by House Republicans under the Obama administration, is an attempt to end cost-sharing subsidies that help offset health care premiums and other out-of-pocket costs. Trump has signaled that his administration will not defend the federal subsidy payments under Obamacare. The States’ motion argues that the District Court’s ruling, if it stays in place, will result in direct financial loss to some of the States, harm consumers, increase the number of uninsured, create additional uncertainty in the health insurance markets, and cause difficulty for State rate approval processes.
In October, a coalition of 18 Democratic AGs filed a lawsuit to block the president’s plan to end federal subsidy payments.
- Safeguarding our Future and Battling Polluting Scott Pruitt
Protecting our environment and keeping our air and water clean under a Scott Pruitt EPA is a constant battle for our Democratic AGs.
From challenging Pruitt’s moves to undercut the clean power plan to fuel efficiency standard rules, Democratic AGs are stepping in to make sure rules are enforced and that our environment doesn’t suffer under an administration keen to pander to business rather than science. Just this past week, 14 Democratic AGs announced they are suing the Trump administration over what they say is a failure to enforce smog standards putting the health of children, people with asthma and those who work outside at risk.
- Protecting Worker’s Rights
Democratic Attorneys General have a strong track record of fighting to protect workers on a wide array of issues including wage theft, worker misclassification, discrimination in the workplace, equal pay for equal work, retaliation, and upholding the right to organize.
In fact, just this year in Pennsylvania, Attorney General Josh Shapiro created the Fair Labor Section to enforce Pennsylvania’s labor laws in partnership with the Department of Labor & Industry and the Pennsylvania Human Relations Commission. In California, Attorney General Xavier Becerra and the California Department of Justice successfully represented the Agricultural Labor Relations Board in Gerawan Farming v. United Farm Workers of America, where the California Supreme Court unanimously affirmed a landmark state law establishing a procedure for resolution of collective bargaining disputes in the agricultural industry.
In Massachusetts, Attorney General Maura Healey issued a Labor Day Report showing nearly $8.7 million in restitution and penalties assessed in 2017 alone by her Fair Labor Division. This division is responsible for enforcing state laws regulating the payment of wages and protects employees from exploitation and wage theft. This year, investigators have visited 283 job sites and businesses in more than 100 cities and towns. And in Maryland, Attorney General Brian Frosh led a coalition of 17 Democratic AGs in filing an amicus brief to support employees’ rights in NLRB v. Murphy Oil USA.
- Preserving National Monuments and Sacred Land
In December, Trump and Secretary of the Interior Ryan Zinke announced plans to shrink Bears Ears and Grand Staircase-Escalante National Monuments as well as an indication to limit additional national monuments in the future.
According to a release from the State Energy & Environmental Impact Center, several state attorneys general have been closely tracking actions by the Trump administration to roll back protections for monuments and stand ready to take legal action if/when necessary. In August, Oregon Attorney General Ellen Rosenblum said she is ready to take legal action if the Trump administration tries to shrink a national monument in this Pacific Northwest state. In June, California Attorney General Xavier Becerra wrote a letter to Interior Secretary Ryan Zinke urging him to protect California’s national monuments and underscoring that a president lacks legal authority to question monument designations made by a predecessor under the Antiquities Act. New Mexico Attorney General Hector Balderas in May wrote to Zinke with deep concern over the administration’s “review” of national monuments. Also in May, Washington Attorney General Bob Ferguson pledged to defend national monument designations and encouraged Zinke and Trump “to respect the legal limits of their powers.”
- Blocking the Travel Ban (1, 2, and 3)
Trump’s attempts—all three— to fulfill his campaign promise of a Muslim Ban have faced challenges from our Democratic AGs. The first lawsuit came just hours after Trump’s first executive order from Washington Attorney General Bob Ferguson.
Hawaii Attorney General Douglas Chin is among those challenging the Trump administration’s latest travel ban on visitors from mostly Muslim countries. He urged the Supreme Court to reject the administration’s plea to be allowed to fully enforce the ban, telling the court that “the justification for that dramatic relief has only weakened” because the latest order, unlike its two predecessors, is permanent.
In the lawsuit filed in Hawaii, federal courts said the updated travel ban that Trump announced in September violated federal immigration law. Also in September, eighteen Democratic Attorneys General filed an amicus brief in the Hawaii travel ban litigation, opposing the Trump administration’s application to stay a district court decision that the ban should not prevent grandparents and other close relatives of United States residents from entering the country.
The latest: Arguments took place on Dec. 6 before a three-judge panel of the 9th U.S. Circuit Court of Appeals in Seattle. The Maryland case went before the full 4th U.S. Circuit Court of Appeals on Dec. 8 in Richmond, Virginia.
- Defending DACA
Prior to the Trump administration’s move to abolish the Deferred Action for Childhood Arrivals program (DACA), a policy that has given nearly 800,000 immigrants who came to the U.S. as children a reprieve from deportation, 20 Democratic AGs wrote to President Trump urging him to maintain the DACA program and offering to defend him against the Republican AGs, if necessary.
After Trump’s announcement to rescind the DACA program in September, 16 Democratic AGs swiftly sued the Trump administration contending the move is discriminatory.
Separately, in September, California Attorney General Xavier Becerra led his Democratic colleagues Maine Attorney General Janet Mills, Maryland Attorney General Brian Frosh and Minnesota Attorney General Lori Swanson in filing a lawsuit against the U.S. Department of Homeland Security over Trump’s decision to end the (DACA) program arguing that canceling the program violates the due process guarantee of the 5th Amendment to the U.S. Constitution by substantially altering the Department of Homeland Security’s assurances on handling the personal information provided by DACA participants.
Additionally, Democratic AGs are a vocal supporter of the nearly 800,000 Dreamers living, working, and/or going to school in this country (see video here). This week as Congress approaches holiday recess, 20 Democratic AGs urged passage of a clean Dream Act to ensure that dreamers can continue to thrive without the fear of deportation.
The latest: Trump kicked this to Congress to come up with a legislative fix for the DACA program, set to expire in 2018. Congressional Democrats are working to push for passage of a clean DREAM ACT that is now part of the current government shutdown negotiations.
- Standing for Equality: Opposing the Transgender Military Ban
In both cases, Stone v. Trump and Jane Doe v. Trump, 15 Democratic AGs came together to file briefs opposing the discriminatory ban. The briefs discussed that the “military has already concluded that allowing transgender individuals to serve openly is in the nation’s best interest
and that the “[a]dministration seeks to ban otherwise qualified people from service simply because of who they are. In doing so, the administration would harm both the Amici States and our residents in profound ways.”
In November, California Attorney General Xavier Becerra filed a motion to intervene in a lawsuit, brought by Equality California, challenging Trump’s Aug. 25 directive that seeks to ban transgender people from joining the military. AG Becerra’s argument focused on the negative impact the ban would have on California,
The latest: Federal judges have halted the proposed ban.
- Questioning Trump’s Business Interests
District of Columbia Attorney General Karl Racine and Maryland Attorney General Brian Frosh filed suit in June against Trump for violating the Emoluments Clause, an anti-corruption clause in the Constitution. The lawsuit claims, “President Trump’s continued ownership interest in a global business empire, which renders him deeply [entangled] with a legion of foreign and domestic government actors, violates the Constitution, calling into question the rule of law and the integrity of our political system.”
The latest: Earlier this month, A federal judge ordered President Trump’s business to preserve records related to the lawsuit brought by the Democratic AGs.
- Battling the Opioid Crisis
Some 2.6 million Americans are addicted to opioids, many of whom start with an addiction to prescription painkillers, but turn to heroin, in part because it is cheaper than drugs like OxyContin, Percocet and Vicodin. The overdose deaths from opioids have quadrupled since 1999. As policy makers and community leaders work together to combat this tragic reality, Democratic AGs are stepping up as part of the coalition of 41 states’ attorneys general that are investigating opioid manufacturers and distributors.
This Fall, the coalition served five major opioid manufacturers with subpoenas seeking information about how these companies marketed and sold prescription opioids. The coalition is also demanding documents and information related to distribution practices from three drug distributors. Additionally, our Democratic AGs continue to work closely with their state health groups and law enforcement to raise awareness about the opioid crisis—and how we can work together to see lives saved.
- Consumer Watchdog
In a letter this month, 17 Democratic AGs criticized President Trump’s temporary pick to lead the Consumer Financial Protection Bureau (CFPB), saying White House budget director Mick Mulvaney should be disqualified from leading the agency given previous comments he has made about the CFPB. The letter indicates they are ready to fight any attempt from Trump to weaken the agency.
Most recently, Democratic AGs came out in numbers to support Net Neutrality in the face of the FCC’s rollback of the 2015 protections including a letter signed by 18 Democratic AGs and spearheaded by Oregon Attorney General Ellen Rosenblum, urging a delay in the vote after millions of public comments the commission received had been determined to be fraudulent. In fact, a number of Democratic AGs, led by New York Attorney General Eric Schneiderman, have indicated they will take the FCC to court over Net Neutrality.
At DAGA, we support Democratic AGs in their work to represent the interests of and protect the people in their states. We are also focused on increasing the number of Democratic AGs nationwide and increasing the diversity of Democratic AGs—the People’s Lawyers should reflect the people they serve.
- Victory in Virginia: In what was the most expensive Attorney General race in Virginia history, topping out at nearly $19 million, the re-election victory for Virginia Attorney General Mark Herring was further evidence that when we think differently about AG races and use resources effectively, we win.
In the last 18 months, we have earned significant wins in three battleground states in the last two cycles including Pennsylvania, North Carolina, and Virginia. We also increased our numbers by one with the addition of New Jersey back into the Democratic fold. Next year, we will shift to offense and expect big gains as a result of ramped up recruiting across the country, new approaches to campaigning, and educating voters on the importance of the office of attorney general. For more on the DAGA difference, check out this Post-Virginia Elections memo.
- Priority Partnerships, The 1881 Initiative: DAGA and Emerge America, the nation’s premier organization that recruits and trains Democratic women to run for office, announced this month that they are partnering on DAGA’s 1881 Initiative. Co-chaired, by Massachusetts Attorney General Maura Healey and Oregon Attorney General Ellen Rosenblum, the Initiative is named after the year two women first threw their hats in the ring for the office of Attorney General. The 1881 Initiative aims to attract and support the most qualified and talented woman candidates through trainings, events and serving as a resource and sets a goal that by the end of the 2022 cycle, half of the Democratic state attorneys general will be women.
The 1881 Initiative launch event included a panel discussion moderated by Celinda Lake of Lake Research Partners with panelists including Oregon Attorney General Ellen Rosenblum, former Massachusetts Attorney General Martha Coakley, Lucinda Guinn, Vice President of Campaigns at EMILY’s List, Valerie Berlin, Principal at BerlinRosen Public Affairs, and Natalie Ludaway, Chief Deputy Attorney General for D.C. Attorney General Karl Racine. For more information, check out this link here.
As we look forward to 2018 and the political landscape ahead (more on that here), DAGA will continue to bring Democratic AGs together to foster stronger communication and collaboration. And we will continue to innovate how we elect and support Democratic AGs.