Greg Abbott, the Texas attorney general who became governor, famously liked to brag about his devotion to fighting the Obama administration, describing his workday as “I go into the office, I sue the federal government, and then I go home.”
Now that Donald Trump is about to take power, California is preparing for the possibility of becoming a similar center of resistance to the authority of the presidency.
“You could see a progressive or liberal attorney general in California saying the same thing – that ‘I come in every day and I sue the Trump administration,’ ” said Thomas McGarity, a University of Texas law professor who watched closely as his state sued the Obama administration nearly 50 times.
Xavier Becerra, the Los Angeles congressman nominated by California Gov. Jerry Brown this week to be the state’s new attorney general, relishes the opportunity.
“If you want to take on a forward-leaning state that is prepared to defend its rights and interests, then come at us,” Becerra said.
While overwhelmingly Democratic California is on opposite sides from Texas on many of the issues, California can learn lessons from the “modest success” that Texas had in battling the power of the president, McGarity said
Current California Attorney General Kamala Harris, who is leaving the position in January to join the U.S. Senate, said the state attorney general’s office is working on an analysis of what Trump might do and how the state could counter it.
“We’re already starting an analysis of that because we have a history in California of standing up in the face of federal opposition, standing up for our values and our principles,” Harris said in an interview. “We’ve done that on a number of issues that range from marijuana to same-sex marriage.”
But making plans is tough since “I don’t know that any of us really knows what exactly he intends to do, compared to what he said in the campaign,” Harris said.
Trump promised in the campaign to dismantle the Affordable Care Act, a law embraced by California more than any other state, with 1.3 million residents enrolled through its insurance exchange and 3.8 million added to the Medi-Cal program for low-income people.
While California has led the nation on environmental issues, Trump dismissed climate change as a Chinese hoax and pledged to slash environmental regulations. Trump promised increased deportations and no federal funding for “sanctuary cities” where local police don’t ask about immigration status, a list that includes Sacramento, San Francisco and Los Angeles.
Mayors of each of those cities have vowed to defy Trump, with Sacramento Mayor-elect Darrell Steinberg saying “we are going to make it very clear that Sacramento will continue to be a sanctuary city.” Los Angeles Police Chief Charlie Beck said his force won’t help Trump deport immigrants in the country illegally and California’s public university systems have pledged to support students regardless of immigration status and said they would refuse to cooperate on deportations.
For Republican officials in Texas, it was good politics to sue the Obama administration. Texas attorney general Abbot used the job as a springboard to the governor’s office.
“It was something an elected attorney general could do to say ‘Look – we’re fighting the evil federal agencies,’” said University of Texas law professor McGarity.
There are parallels in California, where Becerra must run for election in 2018 if he wants to remain attorney general. Becerra could become the national face of Democratic resistance to Trump if he uses the state’s legal power to battle the president, potentially setting himself up to run for governor or the U.S. Senate.
State attorneys general have a lot of power because they have legal standing to sue the federal government that private citizens and advocacy groups often lack, McGarity said.
“It’s undoubtedly an advantage that California will be using as it attempts to challenge the Trump administration,” he said.
One lesson for California is that it’s still hard to beat federal agencies.
University of Texas law professor Thomas McGarity
But McGarity said the experience of Texas shows there are limits to legal challenges of a president. He said Texas struggled with fallout from a 1984 Supreme Court decision that found courts should defer to federal agencies when the law passed by Congress is not clear on what should be done.
“One lesson for California is that it’s still hard to beat federal agencies,” McGarity said.
Another lesson is that it’s difficult for states to go it alone. Texas had little success when suing the Obama administration by itself, McGarity said, but did better when joining with other states to challenge the president.
Texas has spent about $6 million on lawsuits since President Barack Obama took office. The Texas Tribune examined 46 of the lawsuits and found the state won seven, lost or withdrew 21 of them, and that 18 were still pending.
Texas’ most dramatic win came when a split Supreme Court in June overturned an executive order that would have shielded as many as 5 million undocumented immigrants from deportation. Texas led a coalition of 26 states challenging Obama.
Texas’ defeats include a lawsuit against the federal government that sought to keep Syrian refugees from being resettled in the state.
Bill Lockyer, who was California’s attorney general from 1999 until 2007, said allies in opposing Trump policies could include New York attorney general Eric Schneiderman, who reacted enthusiastically to Becerra’s nomination in California.
“Look forward to working w/ you & pursuing NY and CA’s shared commitment to equal justice,” Schneiderman said in a tweet of congratulations to Becerra.
Lockyer has his own history of testing limits of presidential power with lawsuits he filed as California attorney general against the Republican administration of George W. Bush.
“There’s never been a reluctance by California attorneys general to sue federal agencies,” Lockyer said. “During my years, we regularly litigated clean air and other environmental issues with the federal government.”
Victories included lawsuits against Bush administration plans to renew oil drilling leases off California’s coast and harvest trees inside the Giant Sequoia National Monument.
But Lockyer was disappointed in a 2005 Supreme Court ruling that the federal government could outlaw medical marijuana in California despite state legalization. Marijuana could again be a flashpoint in California, as the state’s November vote to legalize recreational marijuana was followed by Trump’s pick of staunch legalization opponent Jeff Sessions as U.S. attorney general.
Newly nominated California attorney general Becerra said he’s watching to see what Trump might do on marijuana and other issues to “intrude on California sovereignty.”
California, he said, has policies that are years or even decades from being approved at the federal level.
“We’re always ahead of the rest of the pack and we should be prepared to defend that,” Becerra said.