Democratic attorneys general are itching to challenge Trump’s agenda

Republicans will soon control the White House and both chambers of Congress. Their trifecta win — especially their 53-seat majority in the Senate — leaves Washington Democrats with few options to counter Republican authority. 

But Democratic state attorneys general can and will fill the federal void. Democratic attorneys general are poised to combat the incoming administration’s overreach and pick up where the current administration’s affirmative agenda will leave off — especially with respect to protecting vulnerable communities.

Through his attorney general, President-elect Donald Trump will oversee thousands of law enforcement professionals and civil servants, and dozens of federal agencies and offices across the Department of Justice, including law enforcement agencies such as the FBI, the Drug Enforcement Agency and the Federal Bureau of Prisons. 

Moreover, civil agencies like the Civil Rights Division, Environment and Natural Resources Division, Office of Community Oriented Policing Services, and the Office of Justice Programs, all fall under the Trump Justice Department’s purview. 

Trump will also nominate 94 U.S. attorneys — each with vast civil and criminal authority in their individual districts. Indeed, the impact of the recent election on our civil and criminal legal systems cannot be overstated.

As in Trump’s first term, Democratic attorneys general will be the on front lines holding the administration accountable when it exceeds its legal authority.

Trump’s first administration was sued hundreds of times, and Democratic attorneys general brought at least 138 of those suits. For example, Democratic attorneys general sued Trump over the construction of the border wall, his “travel ban,” DACA, transgender health protections, family separations at the U.S.-Mexico border and student loan protections. 

Trump has already indicated his intention to build on what he sought to accomplish in his first term. And, given the Republican control of Congress and the presidency, Democratic attorneys general are arguably the government officials best positioned to effectively use legal authority to push back against the Trump administration.

In addition to suing the Trump administration when it overreaches, Democratic attorneys general will have to pick up where the Biden administration leaves off with respect to in expanding rights and freedoms, especially for the most vulnerable. 

For example, Trump’s Justice Department will have to decide whether or not to continue the Biden administration’s efforts to invalidate laws banning certain transgender healthcare for minors which have been passed in nearly half the states. If Trump’s Justice Department does not challenge these state laws, then Democratic attorneys general — working together with Democratic governors and legislatures — will need to look for ways to protect the trans community, including the medical professionals that provide life-saving medical care to them. 

Additionally, because Trump’s Justice Department is unlikely to pursue robust pattern and practice investigations into local law enforcement agencies, in contrast to the current administration’s launch of a dozen investigations since 2021,  it will fall to Democratic attorneys general to investigate law enforcement agencies with a history of civil rights abuses.

The good news is, they are already out front and leading. On issues ranging from reproductive and abortion rights, environmental and climate justice, gun safety, public safety, enforcing nonprofit and workers’ rights law and diversity and equity, Democratic attorneys general are once again proving that they are capable enforcers.

In this vein, Attorney General Ford of Nevada, past co-chair of the Democratic Attorneys General Association, has said that he plans to be a “bulwark” against Trump’s anti-immigrant agenda. 

Attorney General Platkin of New Jersey has vowed to take Trump to court if he unlawfully attacks the rights of New Jersey residents. 

Attorney General Campbell of Massachusetts issued a statement immediately following Trump’s election, saying that her office “is ready to act” against potential threats from Trump’s administration. 

Additionally, three new attorneys general in Washington, Oregon and North Carolina have joined the chorus of commitment to fighting back against the Trump administration when necessary.

Next year, Democratic attorneys general can add to their coalition by flipping the seat in Virginia and holding the post in New Jersey by electing a Democratic governor who will appoint the Garden State’s next attorney general.

Without question, Democratic attorneys general will be important national actors over the next four years. We would all do well to rally around their efforts.

Derick Dailey is a former assistant U.S. attorney and former senior counsel to the New Jersey attorney general. He currently works at an international law firm in New York City.