State Attorneys General Prepare Legal Opposition to Trump Executive Order

The New York Times has a good report on the Democratic attorneys general who have been mounting legal opposition to the Trump administration’s agenda – focusing on the big issue right now, the travel ban executive order:

The three Democratic lawyers met over dinner in a cavernous hotel in Fort Lauderdale, Fla., picking at seafood as they discussed how to take on President Trump: Eric T. Schneiderman, the attorney general of New York; Josh Shapiro, his counterpart in Pennsylvania; and Xavier Becerra, a former congressman who had been sworn in as attorney general of California only a day earlier.

Unrecognized so far from home, and little known to one another, the men spent a Wednesday evening late in January discussing a range of White House policies that might unsettle their states, including a mass deportation of unauthorized immigrants.

They never anticipated that a live-fire test of their teamwork would come less than 48 hours later.

Mr. Trump’s Jan. 27 decree on immigration, shutting off entry to the United States from seven overwhelmingly Muslim countries and halting refugee admissions, left states and cities scrambling to respond. Amid mounting protests and emotional scenes of disorder at American airports, it offered a galvanizing first challenge for a gang of Democratic attorneys general who have vowed to check the power of the White House.

In interviews, more than a dozen Democratic attorneys general, governors and party operatives detailed a week of frenzied litigation, late-night and early-morning phone calls and text messages, and strategies devised on airplanes and at sporting events. All told, Democrats say, the legal onslaught against Mr. Trump was a crystallizing moment for the party’s attorneys general — and a model for how to stall or unwind the administration policies they find most offensive.

The key quote, from New Mexico Attorney General Hector Balderas: “It does seem that we are becoming, potentially, the fourth branch of government.”

One update to this story: sixteen attorneys general have filed an amicus brief on behalf of their states with the Ninth Circuit Court of Appeals in State of Washington v. Trump. The key excerpt:

The Executive Order at issue in this suit bars entry into the United States of nationals of seven majority-Muslim countries, including those who hold valid U.S. visas for work, study, and travel. It hinders the free exchange of information, ideas, and talent between the affected countries and the States, including at the States’ many educational institutions; harms the States’ life sciences, technology, health care, finance, and other industries, as well as innumerable small businesses throughout the States; and inflicts economic harm on the States through diminished tax revenues and other means.
Although the residents, institutions, industries, and economies of the amici States differ, all stand to face the concrete, immediate, and irreparable harms caused by the Executive Order.

Becerra Confirmed as California Attorney General

The California state Senate voted to confirm Rep. Xavier Becerra as the state’s next attorney general on a party line vote of 26-9.  Becerra will be sworn into office tomorrow after his resignation from Congress, some time before Governor Jerry Brown’s State of the State address.

In a statement, Becerra said, “I’m deeply grateful to the State Senate for voting, like the State Assembly, to confirm me as California’s Attorney General.

It is humbling and exciting to assume responsibility for vigorously advancing the forward-leaning values that make California unique among the many states.”

Politically, the California attorney general job is a much bigger platform for the national stage for Becerra than if he had remained in the Democratic minority in the House of Representatives. As the state’s top law enforcement officer, he will most certainly be involved in litigation with the Trump administration on issues ranging from immigration, the environment, and civil rights. If he wants to run for the Democratic nomination in 2020 or wants to be a strong contender in a future Democratic administration, being in the legal trenches fighting against the Trump administration would probably make for a very good credential, particularly if he can get legal victories in federal court or the Supreme Court.

California Is the New Texas

There are two stories worth reading about the role California might play in the years ahead as an opposition foil to Donald Trump. Democrats control the state – the governor’s mansion, combined with supermajorities in both chambers of the state legislature. Essentially, California will – possibly in tandem with other states like New York, Massachusetts and Illinois – assume the role that states like Texas played during the Obama presidency.

First, this story from NPR:

There are several ways the state may challenge Trump and congressional Republicans. It may simply choose not to not enforce some federal laws it disagrees with and enact stronger state laws around environmental and consumer regulations. The state is also likely to aggressively file lawsuits against the federal government.

To that end, Brown’s pick to be California’s next attorney general, Congressman Xavier Becerra will play a high-profile role. Becerra said the state isn’t looking to pick fights but won’t be afraid to go to court either.

“My obligation is to protect my state, to promote the interests of my state,” said Becerra.

It may sound unusual for a liberal state like California to resort to an appeal to states’ rights. For the past eight years, conservative states have argued for their autonomy with respect to the federal government.

But states are opportunistic about their use of states’ rights arguments and tend to employ them when their party doesn’t control Washington, says Carlton Larson, a law professor at the University of California, Davis. Still, Larson says California may want to be careful about how much it uses that argument.

“If we were to push back very, very heavily against federal law, there’s a real danger,” that environmental and civil rights laws that depend on a broad reading of federal law could be endangered, said Larson.

Democrats have already introduced one bill to better train defense attorneys on immigration law and another to fund legal representation for people facing deportation. Both are “urgency measures” meaning they would take effect immediately if they muster a two-thirds vote. The programs are expected to cost millions of dollars.

Second, this Los Angeles Times story about a bill proposed by California legislators – hard to see this as anything other than a direct slap at Donald Trump after his refusal to release his tax returns – requiring presidential candidates to disclose their tax returns as a prerequisite to appear on California’s presidential ballot in 2020, based on a similar proposal circulating in the New York state legislature.

The precedent of presidential candidates releasing their tax returns to the public goes back to George Romney, who released a decade’s worth of returns in his unsuccessful run for the Republican nomination during the 1968 presidential campaign. This practice – not a legal requirement – was observed by candidates from both parties in every election since 1976. Mitt Romney only released two years’ worth of tax returns in the 2012 election, which he was harshly criticized for by Democrats and transparency advocates. Donald Trump didn’t release any of his tax returns, though pages from a 1995 state tax return were eventually leaked to the New York Times by an anonymous source.

These bills would make disclosure of tax returns a binding legal requirement for presidential candidates. Because election laws and ballot access issues are largely left up to the individual states, California and New York may be able to do this legally. The only potential downside is the fact that Donald Trump won the election without California or New York in his column, so hypothetically he might decide to disregard the law and try organizing a write-in campaign for his supporters in those states.

Democratic Attorneys General Prepare to Challenge Trump Administration In Court

As Democrats prepare to enter next year completely shut out from any position of power in the executive and legislative branches of the federal government, Democratic attorneys general are preparing to challenge or oppose the incoming administration’s agenda. According to the New York Times, this would essentially be a continuation of the roles played by Republican attorneys general during the Obama presidency:

The states’ rights arguments that Republicans have made gospel for nearly eight years — that states must serve as a check against federal overreach — are likely to become convenient for Democrats. So are the legal tactics that Republican attorneys general used to stifle Obama administration programs, including filing lawsuits in front of friendly local judges to win nationwide injunctions against policies they hoped to stop, said Amanda Frost, a professor at American University’s Washington College of Law.

With Mr. Trump’s ascension, attorneys general of both parties may shuck any remaining veneer of nonpartisanship, even as they continue to wade across party boundaries on investigations involving consumer protection or pharmaceutical pricing.

According to Paul Nolette, a political-science professor at Marquette University, who studies attorneys general, Republican attorneys general filed partisan legal briefs in only five Supreme Court cases during the Clinton administration, a figure that rose to 97 in the first seven years of the Obama administration.

Donald Trump is already familiar with how litigious and problematic New york Attorney General Eric Schneiderman can be, having recently settled the class-action lawsuit against Trump University brought by Schneiderman for $25 million. But legal opposition in the states to the president’s agenda has a way of elevating the attorney general, as was the case with Greg Abbott in Texas.  A new generation of Democratic stars may emerge from the legal trenches after opposing Donald Trump for the next four years.

Top Sanders Aide Running for California Congressional Seat

Arturo Carmona – the former national deputy political director to the Bernie Sanders presidential campaign – announced that he is running for the seat in California’s 34th congressional district recently vacated by Xavier Becerra:

He’ll be running against former California Assembly speaker John Perez, who announced his candidacy for the seat the day Becerra accepted the state attorney general nomination from Jerry Brown.

Former California Speaker John Perez Running for Xavier Becerra’s Congressional Seat

Former California Assembly speaker John Perez – who announced yesterday he was considering a run for DNC chairman – announced he will be running for Congress. This just in from Democratic strategist Dave Jacobson:

Perez apparently sent out a press statement shortly after the Becerra news broke.

If Perez is going to run for Becerra’s seat in California’s 34th congressional district, that would presumably take him out of contention for the DNC chairman race.

Becerra Chosen to be Next Attorney General of California

The Los Angeles Times just sent out a news alert announcing Governor Jerry Brown has appointed Rep. Xavier Becerra (D-Calif.) to be the next attorney general of California, taking over for outgoing Attorney General Kamala Harris who was recently elected to the U.S. Senate.

More details:

Becerra, 58, has served 12 terms in Congress and was making a bid to become the ranking Democrat on the powerful House Ways and Means Committee when Brown called him unexpectedly to offer the job.

“It’s a phenomenal opportunity,” Becerra said. “It means I get to be home a lot more.”

Becerra, who is the highest-ranking Latino in Congress, would be the state’s first Latino attorney general.

He worked in the Civil Division of the attorney general’s office from 1987 to 1990 before entering Congress. Becerra earned a law degree from Stanford Law School and a bachelor’s degree in economics from Stanford University.

He said in an interview Thursday morning he had always wanted to return to the office.

Becerra, if confirmed, would be the first attorney general appointed by a governor since Thomas Lynch, who was tapped by former Gov. Pat Brown in 1964.

The choice will no doubt send political shock waves through California because Becerra was not on any of the widely circulated lists of picks. Before Nov. 8, the conventional wisdom had been that the governor would choose a caretaker, perhaps even a career staffer who would simply carry out the office’s functions through the 2018 elections.

Becerra must be confirmed by the state Senate and Assembly, both handily controlled by Democrats.

The office of attorney general is perhaps second only to the governor in power, with broad authority to file sweeping legal action and defend California law.

UPDATE: Here’s the statement from Becerra: