while departing Washington Attorney General Bob Ferguson has put it, when the regular judicial opponents of Donald Trump‘s first administration reflect on the early years of his presidency, they remember “building the airplane as we were flying it.” This was particularly true of the fierce and swiftly paced legal battle against the so-called travel ban, a landmark case in 2017 that established the framework for four more years of court battles.
When Trump is sworn in next month, none of the Democratic state attorneys general who first sued him over that contentious policy will still be in office. Even while the political and legal environment has changed during Trump’s first term in office, their successors won’t be starting from scratch this time.
For months, if not years, they have been planning the types of cases they could wish to file in opposition to a Trump 2.0 agenda. They have taken this action because the president-elect and his aides have pledged to conduct a more advanced and error-free operation this time.
Both Trump’s campaign pledges and the recommendations in Project 2025, the policy manual compiled by a conservative think tank and authored by a number of Trump first administration veterans, some of whom are currently running for president, have been scrutinized by Democratic officials and their staff.
In addition to accepting a political reality that handed Trump a more resounding election victory than in 2016, they are also modifying the legal tactics employed against him in the first round to accommodate for changes in court precedent since then.
The voices of the people were considerably more audible. Understanding the reasons behind that is one of my responsibilities, Colorado Attorney General Phil Weiser said CNN. “The administration has the right to pursue lawful policies to the extent that they are pursued.”
The current attorneys general in a few states have been in office since the latter part of Trump’s first term, so they have a good idea of what it’s like to sue his administration. Four Democratic attorneys general will be serving in states where their governor served in that capacity during the previous Trump administration, while others have inherited office staff who contributed to the creation of the major legal difficulties of his first term.
Internal briefs outlining various legal alternatives for contesting specific Trump ideas have been part of the planning process, as has an examination of how recent court judgments should influence those rulings.
Nick Brown, the incoming attorney general of Washington, has been researching the changes in fundamental legal principles, like standing, since the first Trump administration. California Attorney General Rob Bonta urged his staff to create possible plans for how his state may fight a national abortion ban the day after the Supreme Court reversed Roe v. Wade in 2022.
Democrats expect bitter conflicts over a number of topics, including mass deportation, access to abortion, the environment, and consumer protection. The president-elect and his supporters have been “a little bit more predictable with specifics” than Trump was throughout his 2016 campaign, according to Bonta.
Bonta, who served in the California senate during the first Trump administration, continued, “We expect him to do what he says.” “We have already experienced this once at 1.0 and are aware of many of the instances in which he violated the law.”
“I won’t lash out just because I want to.”
State-brought lawsuits against the federal government amounted to triple digits during the first Trump administration, and those officials at the forefront of the legal struggle became national celebrities as a result of those court battles. The Democratic vice presidential shortlist for 2024 included Pennsylvania Governor Josh Shapiro, who served as the state’s attorney general in 2017. The Democratic governors of North Carolina and Washington in January, as well as Kentucky, Maine, and Massachusetts, are former attorneys general who also fought the first Trump administration in court.
They bring expertise and experience from their courtroom battles with Trump to the governor’s house, which will help the attorneys in their current positions. In their capacity as governors, they can support the work of state attorneys general by proposing additional legislation and assisting in securing financing.
Andrea Joy Campbell, the commonwealth’s current attorney general, told CNN that it is “actually critical” that former Massachusetts attorney general Maura Healey is running for governor for a second Trump term.
Ferguson, who was elected governor of Washington, joined Brown, his successor, in a news conference held after the election last month, where both Democrats stated that Trump’s threats of retaliation would not affect the decision to file a lawsuit. In 2020, Trump allegedly ignored a request for wildfire catastrophe assistance from Washington, which was eventually granted when President Joe Biden assumed office.
“We should enforce the law without fear of retaliation if people are being harmed or if the law is being broken,” Brown stated.
That does not imply, however, that Democratic attorneys general will oppose Trump on all fronts. They told CNN that they will only file a lawsuit when the legal situation calls for it, even though they will likely disagree with many of his policies.
While attempting to collaborate with the Trump administration on other subjects that have garnered bipartisan support, like tackling the opioid crisis or pursuing antitrust cases against social media firms, they will need to navigate this needle. State and federal authorities must usually coordinate in order to carry out law enforcement’s daily tasks.
“Regardless of the president,” Illinois Attorney General Kwame Raoul told CNN, “I want to maintain the local partnerships my office has been able to establish with these agencies.” “I will not strike out just because I want to.”
However, he and other attorneys general stressed that they are determined to bring the incoming president to justice if they feel that he has broken the law in a way that is hurting citizens in their states.
In Wisconsin, which supported Trump this year, attorney general Josh Kaul stated, “To the extent that there was a strong mandate here for the administration, it was specifically on cost of living.” “I don’t believe that many people who supported the Trump administration did so in order to deny people their rights.”
“President Trump will serve ALL Americans, even those who did not vote for him in the election,” stated Karoline Leavitt, a spokesman for the Trump transition team, in a statement when asked for comment for this article. His accomplishment will bring the nation together.
Changes in the legal environment
During the Biden years, the connections that state attorneys general made with one another during the first Trump administration persisted, and a few months ago, the topic of Trump’s potential comeback came up in those cross-state discussions.
These conversations have included figuring out which state is most qualified to spearhead a legal challenge, possibly due to its knowledge of the subject, the way the policy specifically impacts its citizens, or the state’s position on the federal circuit court map.
To keep the conversation continuing, the Democratic Attorneys General Association, which had only a few staff members at the start of the first Trump term but now has 40, hosts frequent Zoom sessions and in-person conferences.
DAGA president Sean Rankin told CNN that the organization’s February meeting in Seattle marked the start of serious talks for a possible second Trump administration. The group set aside time at a conference in Philadelphia two weeks after the election for the incumbent and incoming Democratic attorneys general to have private conversations without DAGA staff present. Another in-person conference is scheduled for February, a few weeks after the inauguration.
The impact of recent judicial and legal developments on the attorneys general’s legal thinking is one problem they must address. Since Trump appointed three justices at the beginning of his first term, the Supreme Court has shifted to the right. At the end of 2020, one of them, Justice Amy Coney Barrett, took the place of the late liberal Justice Ruth Bader Ginsburg.
Following the high court’s lead, lower court judges have been less inclined to grant the kind of countrywide injunctions that stopped Trump initiatives nationwide in a single case.
On the other hand, a string of Supreme Court decisions under the Biden administration mandate that courts examine executive agency actions more closely. One such decision from 2024 overturned the long-standing deference that judges accorded to agencies’ interpretations of ambiguous statutes. Even though Democrats have criticized the court’s conservative wing for undermining federal regulatory authority, they say they still want those precedents to be applied equitably.
Connecticut Attorney General William Tong said CNN, “They have made their bed and they’re going to have to lie in it.” “There is no deference if there is no respect for the Department of Homeland Security under Kristi Noem or the EPA under Lee Zeldin.”
The locations of the most important court battles will probably change as well. After Trump selected ten judges to the court, the US 9th Circuit Court of Appeals, a longtime Democratic favorite that serves the Western region of the nation, is no longer as liberal as it was at the start of the Trump administration. After Biden’s judicial reform, the First Circuit, which serves the upper Northeast, will probably be the safest choice for Democrats because it currently has no Republican appointees among its active justices.
The win record of their offices during the first Trump administration, when some states prevailed in 80% or more of the lawsuits they brought against his first-term agenda, is a point of contention for Democrats amidst all these changes. The fact that courts have so often determined that Trump has violated the law gives the attorneys general confidence that they would prevail in their legal battles with his second administration, even in a changed judicial environment.
“The circuits are now different. Matthew Platkin, the attorney general for New Jersey, told CNN that the Supreme Court has evolved. “However, they have also frequently supported the rule of law, and I believe they will do so once more.”