State Litigation during the Obama Administration: Diverging Agendas in an Era of Polarized Politics

Abstract

Throughout the Obama Administration, state attorneys general (AGs) have collaborated on several high-profile political issues. To get a fuller picture of this contemporary AG activism, this article analyzes AG participation in lawsuits and amicus curiae briefs before the U.S. Supreme Court across three presidential administrations. The results suggest that AGs’agendas have increasingly diverged throughout the Obama Administration, reflecting greater vertical conflict between AGs and the federal government as well as horizontal conflict among AGs themselves. Several factors have contributed to this development, including the broader polarization of American politics, intensified activism among Republican AGs, and increased collaborations between AGs and ideological interest groups. Much as with partisan contestation in other venues, these AG conflicts show few signs of abating. Since President Obama took office in 2009, state attorneys general (AGs) have been among the administration’s most persistent foes. Most famously, several AGs initiated legal challenges to the Patient Protection and Affordable Care Act (ACA) only minutes after the president signed it into law, an effort that led to the Supreme Court limiting the ACA’s Medicaid expansion (National Federation of Independent Business v. Sebelius [2012]). The ACA litigation was the most prominent state legal challenge to the Obama Administration, but it has been far from the only one. By the end of Obama’s first term in office, Republican AGs had filed over seventy lawsuits challenging the administration’s policies. Texas AG Greg Abbott, who only half-jokingly described his average day as ‘‘I go to the office. I sue the federal government. And then I go home,’’ has himself led twenty-four lawsuits against the Obama Administration at a cost of over $2.5 million and thousands of hours of staff time (Monro 2012; Weissert 2012; Fernandez 2013). Meanwhile, the federal Department of Justice has tangled with its state counterparts