The latest round of Trump administration legal challenges to California may not make a lot of legal sense – but it sends an important political message in the Golden State and elsewhere as election campaigns get more intense.
The Justice Department challenged the state’s sanctuary cities law last month. Monday, it moved against California over the power to sell federal lands. The latest action was a surprise to state officials.
But the message was clear: The White House will get tough with state policies it doesn’t like.
“Most everything we are seeing is political theater,” said Rob Stutzman, a GOP political consultant in Sacramento. “It is kind of like professional wrestling.”
Winning the latest lawsuit is hardly a sure t hing, said several former Justice officials.
“I find it very surprising that they’d go after this, especially in these circumstances,” said Stuart Gerson, assistant attorney general under President George H.W. Bush.
“This would be easier, legally, if they waited until after they were blocked,” he explained. “It’s hard to see what the federal government is doing or is about to do that would be harmed by the state.”
Perhaps more important for the administration: The suit, the latest official action by the Trump administration against California interests, could reverberate politically across the nation.
It illustrates how the White House will go after states it believes are flouting federal law, especially if those states are liberal bastions.
“It’s ironic, because traditionally you have Republicans arguing for state rights and Democrats fighting for federal rights,” Gerson said. “This is all backwards.”
The White House did not respond to requests for comment, but a Justice Department official who declined to be named said “several agencies with land interests in California” asked the department to file the suit and said the lawsuit was necessary due to California’s interference “in this extreme way with such a basic power of government.”
That’s the sort of thing that a lot of Republicans want to see and hear, though Stutzman noted there is some danger for the GOP: Democrats could benefit by claiming the administration is too extreme or pursuing a vendetta.
“Each side is so benefiting with their bases from these choreographed fights that it almost makes you wonder if they have conference calls at midnight to plan out what happens the next day,” Stutzman said.
Alex Conant, a Republican political strategist who helped the presidential bid of Sen. Marco Rubio, R-Fla., said California’s continued perceived moves to the left — Democrats have a huge majority in the California Legislature and comprise three-quarters of federal representatives — have given the Trump administration more motivation to use it as a political enemy.
Conant said Republicans see little chance for a Republican to win statewide office anyway in the near future, so they have nothing to lose by targeting the state – and drawing attention in swing states such as Ohio, Pennsylvania and Wisconsin, where some Republican voters see California as unreasonably liberal.
The biggest political stakes this year nationwide involve control of the House and Senate. Democrats need a net gain of two seats to control the Senate next year and 23 to run the House.
Many Democrats in both the House and Senate are looking at tough races in states and districts Trump won, including Sens. Claire McCaskill, D-Mo., Joe Manchin, D-W. Va., Heidi Heitkamp, D-N.D., Joe Donnelly, D-Ind., Bill Nelson, D-Fla., and Tammy Baldwin, D-Wisc.
The administration action, though, does create a tough situation in California for some Republicans.
Reps. Duncan Hunter, Jeff Denham and David Valadao are vulnerable Republicans who have to strike a balance between appealing to Trump supporters in their districts but not alienating moderates, especially among significant Hispanic populations.
“They have to develop a way to work around that, and not focus on what Trump is doing,” said Grant Gillham, a former GOP staffer in Sacramento who founded a national public affairs firm and now identifies as independent.
Trump going after his perceived enemies publicly and obviously is nothing new, but the Justice Department’s participation is a sign the dispute has escalated to more serious levels.
“The Department of Justice is supposed to make decisions based on law and the facts, not based on politics, period,” said Vanita Gupta, principal deputy assistant attorney general under President Barack Obama.
California, for its part, has filed or joined more than two dozen lawsuits against the federal government since Trump took office.
Trump’s Justice Department has not filed lawsuits against any other states, but has announced two against California in the last month.
The first challenge involved sanctuary cities and made sense as a reaction to escalating conflict, according to Gerson and Arthur Rizer, a former attorney in the Justice Department for about 10 years and currently working for libertarian think tank R Street Institute. That case is pending in the California Eastern District Court.
The Justice Department issued warnings and threatened to take away federal funding for months before the lawsuit was officially filed in March. Restricting immigration and outlawing sanctuary cities are a major part of the administration’s agenda.
Not so with the lawsuit over federal lands, according to Gerson. Trump has indicated publicly that he doesn’t plan to sell off federal lands.
The lawsuit expresses concerns over the right to develop land for military bases, but doesn’t present much evidence that California has blocked the federal government from doing so. Senior Justice officials indicated in a briefing with reporters that they had not spoken with California officials about this issue before filing the lawsuit.
A Justice official pointed to two examples in the lawsuit of how California’s law at issue has prevented the federal government from selling federal land: A Postal Service property of 1.7 acres not getting bids during an auction that was suspended in March and another property sale that was scheduled to close in January but has been delayed. California officials are considering an exemption for the latter that would allow the federal government to bypass the state law.
Further adding to speculation that the suit was filed for political reasons was a statement by Attorney General Jeff Sessions. In it, Sessions ripped into California for filing “frivolous lawsuits.”
A Justice official compared the statement to some made by Obama administration officials when filing lawsuits against Arizona, but both of those statements were critical towards Arizona on the case matters, not broadly accusing the state of impeding the department’s ability to do its job as Sessions did.
Rizer called Sessions’ statement “astonishing.”
“If you look at every major talking point on the GOP platform – immigration, the opioid epidemic, it even says radical Islamic extremists over just terrorists generally – every major political buzzword is in there,” said Rizer. “It looks like a campaign statement.”
McClatchy reporter Stuart Leavenworth contributed to this report.
Kate Irby: 202-383-6071, @kateirby
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