Democratic state attorneys general were already playing a central role in the legal battle against President Donald Trump’s agenda. The Supreme Court has now made it so that they’re effectively the only ones who can fight.
The Supreme Court’s opinion significantly restricting federal courts’ ability to issue nationwide injunctions “imposes a significant hardship on people who want to defend their rights,” House Judiciary Ranking Member Jamie Raskin — House Democrats’ chief legal strategist — said in a statement to NOTUS.
In turn, state attorneys general are now “in the unique position of retaining the ability to secure injunctions that protect the rights of all, underscoring the fundamental role state Attorneys General can and must continue to play in defending the rights of the people,” Raskin continued.
The Supreme Court left two avenues for lower courts to issue broad-based blocks on the administration: Class-action lawsuits and challenges from the states themselves.
Class-action lawsuits are slow to set up and often limited in scope, meaning that Democratic attorneys general, who long saw themselves as the last line of defense between the people and Trump, are now Democrats’ main way to secure a nationwide injunction.
Outside groups, private lawyers, and regular American citizens can no longer sue in pursuit of widespread relief.
Justice Amy Coney Barrett, who wrote the court’s opinion, essentially punted on whether a universal injunction could be issued in cases where states argue the problem can’t be fixed without one.
“The lower courts should determine whether a narrower injunction is appropriate; we therefore leave it to them to consider these and any related arguments,” Barrett wrote for the majority.
Two of the three cases challenging Trump’s birthright citizenship executive order came from coalitions of state attorneys general.
Sen. Richard Blumenthal, a former state attorney general, told NOTUS that the court’s decision “emboldens and empowers [Trump] to defy the rule of law and simply act according to his own whims and preferences.” From now on, he said, “state attorneys general are in a better position to challenge unlawful executive orders than the everyday individual person.”
“The importance of the state attorneys general in stopping unconstitutional actions by the president is tremendously heightened by this president’s tendency to break the law,” he continued.
It’s not uncommon for Democratic-led states to band together in various coalitions to challenge the Trump administration’s most controversial decisions in court — ranging from the birthright citizenship case to the imposition of sweeping global tariffs, the withholding of federal funds, and the dismantling of the Health and Human Services department.
“I’m really proud to be part of this [attorney general] — and of course, Democratic [attorney general] — coalition that is doing the work every single day to protect our rights, and most importantly, the rule of law,” Massachusetts state Attorney General Andrea Joy Campbell said in a press conference Friday. “We can’t take our sight off of that.”
California state Attorney General Rob Bonta said collaboration has been “critical,” adding that Democratic attorneys general have been working to jointly challenge Trump’s policies “for over a year.”
Bonta added that now was the time for Republican attorneys general to join them in challenging the Trump administration.
“The red state attorneys general are not fighting for the rights of their people,” Bonta said. “I honestly have thought that during the course of our lawsuits, they have been secretly very happy that we’re suing because they have been coasting, drafting behind our work and benefiting from it without having to do the work.”
From now on, the nationwide injunction could be limited to state challenges with especially unique and complicated harms. Birthright citizenship could be one such case, said Jeff Modisett, the former Democratic Indiana attorney general and a lecturer at the University of California, Los Angeles Law School.
“If there is a case for the universal injunction still, this may be the one where you’d want to avoid any sort of potentially patchwork implementation,” Modisett said.
While the Supreme Court likely won’t rule on the merits of birthright citizenship until next term, there is a chance that the state attorneys general are able to persuade a lower court that a nationwide injunction remains the only appropriate way to deal with the case — quickly pushing it back up to the justices to answer that question.
“There’s just a lot left to play out in the lower court. I would anticipate we’ll see a lot of litigation on these fronts and that these issues are going to be back up to the Court of Appeals and to the Supreme Court before too long,” said Sarah Konsky, the director of the Supreme Court and Appellate Clinic at the University of Chicago Law School. “I anticipate this decision will raise a lot of questions and raise a lot of litigation in the short term.”
Should that be the case, there appears to be some appetite on the court to further its opinion.
In his concurrence, Justice Samuel Alito wrote that class-action lawsuits and cases brought by state attorneys general “would create a potential significant loophole in today’s decision.”
“Federal courts should thus be vigilant against such potential abuses of these tools,” Alito wrote.
In cases where a universal injunction may now be hard to get, or where a class-action lawsuit is difficult to set up, every state attorney general interested in stopping the enforcement of an executive order in their own state (such as a federal grant funding freeze, for example), will likely need to be a party in a legal challenge itself.
“It does seem that if it is going to become more difficult to bring individual cases, that the states may become important actors in bringing these challenges,” Konsky said.
The opinion is also likely to force courts to grapple with a patchwork of policy enforcement between states that have sought injunctions and those that have not.
“You could very well have a situation where certain states bring the action and others don’t and then courts will have to work through the implications of that,” Konsky said.
States that do not participate in challenging Trump’s orders are “going to be in the hot seat now,” New Jersey state Attorney General Matt Platkin said. In effect, every attorney general is now more on the hook than ever for the impacts of Trump’s policies.
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Oriana González and Anna Kramer are reporters at NOTUS.