State-Led Lawfare Eclipses Freedom-Preserving Federalism

The Trump Administration’s tidal wave of presidential directives has unleashed a tsunami of litigation. The Administration has issued 89 executive orders in its first fifty days, ordering cabinet secretaries and others to reverse Biden Administration policies, rescind regulations, reduce staffing levels, and limit immigration. In response, states, interest groups, and others have filed over 120 lawsuits in federal court. (A running tally of suits filed against the Trump Administration can be found here.)

State governments—or, more precisely, blue state governments—have taken the lead in filing challenges to many of the Trump Administration’s most high-profile initiatives, including its efforts to narrow birthright citizenship, reduce the federal workforce, and unleash the Department of Government Efficiency on the federal budget and bureaucracy. In over a dozen lawsuits and many more amicus briefs, blue state governors and attorneys general accuse the Trump Administration of violating federal law and, in some cases, the Constitution. Red states have not sat on their hands either, as many have been equally active in filing amicus briefs to defend the Trump Administration’s initiatives against legal attacks.

State resistance to the federal government is nothing new. James Madison expected state governments would push back against federal overreach to the benefit of individual liberty. As he explained in Federalist 51, the Constitution creates a “compound republic” in which each level of government has its own sovereign power derived from the people. States are not subdivisions, but “distinct governments.” Constraining federal power and preserving state policy prerogatives helps check governmental intrusions and fosters greater self-government. The compound federalist structure, Madison expected, would provide a “double security” for “the rights of the people” as the federal and state governments press against each other, each seeking political support.

Part of how states work to protect individual liberty is by preserving their authority to serve the interests and wants of their citizens. Curiously enough, few of the lawsuits filed against the Trump Administration have anything to do with state prerogatives or state power. While some of the suits concern efforts to pause or limit funding to state institutions, such as state universities, or seek to limit the preemptive effect of federal policy, most concern naked policy disagreements between Republicans and Democrats over the proper course of federal policy. Blue states are challenging the policy initiatives of a Republican president not because these initiatives constrain state choices or injure state interests but because they advance the agenda of the other team. Red states, in turn, are lining up to support the President without regard for whether distinct state interests are at stake.

The use of litigation as a proxy for political contestation by state AGs is not new, but it has been increasing at a dramatic rate. Red state AGs were quite active in challenging the Obama and Biden Administrations’ policy initiatives, and blue state AGs litigated plenty against the first Trump Administration and that of President George W. Bush. But there is an ever-growing volume of such suits, and they increasingly represent the opposition party’s frontline of attack against the occupant of the White House, particularly when the opposition party lacks a majority in either house of Congress. In 2024, some red states even tried to sue the state of New York over the prosecution of Donald Trump under state law.

As state lawsuits have become more aggressive and expansive, they have become less tied to tangible state interests. States have long filed suit to push back against federal preemption, resist the commandeering of state officials, and maintain federal funding free of meddlesome conditions. The primary challenge to the Affordable Care Act may have been styled National Federation of Business v. Sebelius, but there would have been no challenge to the federal Medicaid expansion if twenty-six states had not joined the suit as plaintiffs. State lawsuits can also protect state primacy in matters of state or local concern.

Yet, as the number of state suits against the Presidential administrations of the opposite party have proliferated, the identifiable state interests at stake have become diluted. States are suing less to protect their interests as states, and instead they are suing to fly the flag for their preferred team and jump to the forefront of the political opposition. State AGs have filed more suits against the Trump Administration over DOGE and reductions in force at federal agencies than they have resisting efforts to conscript local law enforcement into cooperating with federal immigration enforcement. Whether an issue is sexy enough to justify a spot on cable news is becoming a better predictor of whether a state will file suit than whether the federal government is exceeding the scope of its enumerated powers. Worse still, states are increasingly suing the federal government to have their policy preferences imposed nationwide. In this regard, some state suits directly undermine federalism.

In theory, the constitutional requirement that litigants have Article III standing to sue in federal court would limit state AGs’ use of litigation for political opportunism. Under Lujan v. Defenders of Wildlife, a prospective plaintiff must clear three hurdles to have standing to sue in federal court. First, the plaintiff must have suffered an “injury-in-fact” that is both actual or imminent and concrete and particularized. Second, the plaintiff must demonstrate that their injury was caused by the federal action about which they are complaining. Third, they must be able to explain how a favorable court judgment will rectify their alleged injury in a tangible manner. Favorable headlines and the warm fuzzies of a court victory are not enough.

The standing requirements of Article III are often enough to keep overtly political cases out of court, but the Supreme Court has lowered the bar for state litigants. In 2005, Massachusetts sought to challenge the EPA’s refusal to regulate greenhouse gases under the Clean Act. The alleged injury was that such emissions would contribute to global warming and sea-level rise over the next century. No individual could plausibly meet the Lujan standard based on such claims, however. A global phenomenon like global warming is hardly particularized to an individual plaintiff, and gradual climatic changes over decades are hardly imminent, let alone actual (and the state of climate science at the time made more concrete showings particularly difficult). A few inches of predicted sea-level rise over a century is not much of an injury-in-fact.

Rather than let Massachusetts’ climate suit founder on the shores of Article III, the Supreme Court threw it a lifeline. In Massachusetts v. EPA (2007), the Court proclaimed that states, such as the Commonwealth of Massachusetts, are “entitled to special solicitude” on the question of standing. As explained by Justice Stevens on behalf of a five-justice majority, states surrendered certain “sovereign prerogatives” by joining the union, such as the ability to negotiate treaties or invade neighboring states to redress environmental harms. Accordingly, courts must be extra solicitous of state efforts to advance their interests in federal court, including challenges to federal policies they do not like.

In the wake of Massachusetts, states became increasingly aggressive in conjuring up tangential harms that would enable them to sue. This has not always been the case, as evidenced by the recent instance when the justices halted Texas' attempt to sue for more aggressive immigration enforcement. However, it is increasingly becoming no more than a minor hurdle for states seeking to challenge the federal government in court. In this way, states have become major players in federal policymaking—not through their representation in Congress, but through their propensity to file suit in federal court

Lowering the standing bar for states has not only encouraged state AGs to file more suits but has also facilitated political grandstanding. Starting litigation is an effective way for state AGs to grandstand and grab headlines as the champions for their tribe’s cause. Many state attorneys general appear to be increasingly focused on becoming national figures who influence federal policy, rather than defenders of state prerogatives and local interests. This may be beneficial for those aspiring governors, but it is detrimental to federalism and undermines the “double security” that Madison wrote about.

In a large, heterogeneous republic like the United States, different states will inevitably have distinct interests—interests that may not align with the state’s voters' preferences for Democrats or Republicans in even-numbered years. Allowing different states to adopt different policy priorities makes it more likely that more people will live and work under laws that they prefer, whether the subject is tax rates, marijuana possession, environmental protection, or abortion. Resolving such questions at the national level, however, fuels political polarization and heightens the stakes of national elections. As Alexis de Tocqueville warned, “In large centralized nations the lawgiver is bound to give the laws a uniform character which does not fit the diversity of places and of mores.” Yet, much state litigation is aimed at imposing such nationally uniform rules, often through requests for nationwide injunctions rather than state-specific relief.

State attorney general litigation could serve to preserve state autonomy, corralling federal regulatory authority, limiting federal preemption, and curtailing Uncle Sam’s ability to induce state cooperation with conditional spending. Like its predecessors, the Trump Administration will provide no shortage of opportunities to pursue such causes. Instead, most state attorneys general seem more interested in forcing federal policy into alignment with their own political priors or the demands of their respective tribes. Thus, California spends more time suing the federal government to increase the stringency of federal environmental regulations than it does preserving its and other states’ ability to adopt those policies most in line with state voter preferences.

States should be able to sue when they have real interests at stake, and it is perfectly appropriate for political leaders in states to advance their policy agenda through litigation. But where genuine state interests are not at stake, these sorts of suits should be left to those who are directly injured by the government action complained of. This is unlikely to leave many major federal policies unlitigated. Parents whose children are denied a passport or social security number will still challenge Trump’s birthright citizenship executive order, and those who risk losing federal grants or payments will still sue to ensure they are paid what they are owed. Such suits will focus less on national policy and more on whether individual claimants are entitled to redress—as Article III anticipated. And if states had a little harder time getting into court, they might focus their efforts on protecting their interests as states, thereby reinforcing the “double security” our federalist system was meant to provide.

Jonathan H. Adler is the inaugural Johan Verheij Memorial Professor of Law and Director of the Coleman P. Burke Center for Environmental Law at the Case Western Reserve University School of Law.