“Trump gets powerful new rival in Letitia James,” proclaimed one headline. “The thorn in Trump’s side,” said another, soon after New York Attorney General Letitia James took office in 2019. Almost two years later, she has proven the headlines right. Since being elected, James has been at the forefront of a broad coalition of Democratic state attorneys general opposing the Trump administration’s program of executive overreach. Most recently, James, alongside the state attorneys generals of Hawaii and New Jersey, obtained a federal court order barring Trump appointee Postmaster General Louis Dejoy from implementing his proposed policy changes to the postal service. The changes would have delayed USPS mail delivery just as millions of Americans turned to mail-in voting for the November election. In granting the injunction, the judge emphasized “the burden the USPS policy changes place on Plaintiffs’ constitutional right to vote.”

As exemplified in the recent court battle over the postal service, I argue that Democratic state attorneys general have become important institutional checks against democratic backsliding under the Trump administration. As independently elected (or, sometimes, appointed) representatives of state constituencies, they have combated executive aggrandizement and the strategic manipulation of elections by Trump — both forms of democratic erosion identified by political scientist Nancy Bermeo^[1]. The lawsuit against the Trump administration’s USPS policy illustrates how state attorneys general can leverage their legal authority and bully pulpits to combat executive actions that would, to quote Bermeo’s definition of executive aggrandizement, “hamper the power of opposition forces to challenge executive preference”^[2] through voter suppression.

How have state attorneys general become leading resisters of democratic backsliding? The answer lies within what legal scholar Heather Gerken calls progressive federalism: the mobilization of state power against the federal government by progressives, given that “racial minorities and dissenters can wield more electoral power at the local level than they do at the national.”^[3] It is a radically different interpretation of an old argument for states rights, which Gerken aptly recognizes was once used by racist segregationists to prevent the federal government from enforcing Black civil rights. However, today, nationally marginalized “dissenters,” including racial minorities in Democratic strongholds, are often far more capable of organizing at the state level. As a result, even as the Trump administration has rolled back federal protections against LGBTQ+ discrimination or environmental pollution, state governments have preserved them.

As the elected or appointed representatives of state constituencies, Democratic state attorneys general are accountable to these progressive dissenters, and not the federal government. They are the product of state-level politics that, as legal scholars Aziz Huq and Tom Ginsburg note, can offer “platforms for alternative, antiauthoritarian politicians” when the federal government is controlled by authoritarian politicians.^[4] Through representing the interests of independent state and local-level dissenters to federal backsliding, Democratic state attorneys general have become these very “alternative, antiauthoritarian politicians.” They have marshaled state power to serve as a bulwark against the Trump administration’s attempted entrenchment of Republican control through anti-democratic executive action.

The democratic consequences of progressive federalism as put into practice by Democratic state attorneys general are not limited to the lawsuit over USPS policy changes. Indeed, state attorneys general have consistently taken to the courts to combat Trump’s thinly veiled attempts at using the powers of the executive for his own political benefit. In 2018, then-New York Attorney General Barbara Underwood sued in federal court to prevent the Trump administration from adding a citizenship question to the 2020 census — a change which experts widely agreed would result in an undercount of immigrants and thereby systematically reduce Democratic representation in Congress. The coalition of state attorneys general lead by New York won at the Supreme Court in Department of Commerce v. New York, with Chief Justice Roberts affirming Underwood’s argument that the Trump administration’s rationale for the proposed change “appears to have been contrived.”^[5] Since then, New York Attorney General James has continued to take legal action against Trump’s attempted manipulation of the constitutionally-mandated 2020 census. In early September, she obtained a federal court order which blocked the Census Bureau from implementing an unconstitutional Trump executive order excluding undocumented immigrants from being counted in apportioning congressional districts. The three-judge panel called the executive order “an unlawful exercise of the authority granted to the President.” In both census cases, Trump attempted to extend executive control over a politically independent arm of government, the Census Bureau, in order to undermine the political power of his opposition. In both cases, a coalition of state attorneys general stopped him, representing the Democratic constituencies — the progressive dissenters — which Trump sought to disenfranchise.

Of course, state attorneys general are only one part of a constellation of political actors that have resisted executive overreach by the Trump administration. With control of the House of Representatives, Democratic representatives used committee hearings to draw attention to the proposed postal service changes as James’ lawsuit proceeded through the courts. Civil society, and most prominently the American Civil Liberties Union, collaborated with state attorneys general on several cases. Moreover, the success of lawsuits by state attorneys general against Trump also heavily depended on the independence of the judiciary. But as increasing partisan polarization means that “major political actors are no longer satisfied with losing gracefully, and competing again,”^[6] disenfranchising the opposition and marginalizing their base becomes all the more attractive for the incumbent. Then, those citizens who are marginalized at the national level require alternative platforms of political and institutional power to consolidate under and with which to amplify their voices. State attorneys general, as the vanguard of a progressive federalism, are one such platform through which dissenting voices can resist and begin to be heard.

^[1] Nancy Bermeo, “On democratic backsliding,” Journal of Democracy 27, no. 1 (2016): 5-19.

^[2] Ibid., 10.

^[3] Heather K. Gerken, “A new progressive federalism”, Democracy 24 (2012): 37.

^[4] Aziz Huq & Tom Ginsburg, “How to Lose a Constitutional Democracy,” 65 UCLA Law Review 78 (2018).

^[5] Department of Commerce v. New York, 588 U.S. ___ (2019).

^[6] Ellen Lust and David Waldner, “Unwelcome change: Coming to terms with democratic backsliding,” Annual Review of Political Science 21 (2018): 110.