Paul Nolette: State Attorneys General and the Trump Administration

00:02: And thought about who would be the expert to provide an overview on this, and it did not take us long to settle on an invitation to Paul Nolette. Paul is an associate professor at the Political Science Department at Marquette. He holds a remarkably interesting, and I think challenging, dual set of graduate degrees. A JD from Georgetown and a PhD in Political Science Public Law from Boston College. That's something you just whipped through in a couple of years. Quite an endurance test and one that you've put to good standing. And the author among many important publications have a really intriguing book called "Federalism on Trial: State Attorneys General and National Policymaking in Contemporary America," published in 2015. Which is a really, really penetrating look into this evolving institution of state attorneys general. We asked Paul to come to visit today and give a talk that revisits some aspects of his book, but is particularly mindful of the current and evolving context in state houses such as Lansing, state capitals around the country, but also thinking about that changing relationship. And so he offers a title, State Attorneys General in the Trump Administration, Rising Inter-governmental Conflict, but with that interesting follow up and perhaps some cooperation. Please join me in welcoming our speaker Paul Nolette.

[applause]

01:27: Thanks, thank you.

[applause]

01:30: Well, thanks so much Professor Rabin and thanks to all of you for coming here today as well. And the rest of the series, the speaker series sounds great. Actually, it kind of makes me wanna cross the lake again and come back over here [chuckle] and attend these. So, yeah, my topic today is on State Attorneys General and I think it's fair to say that State AGs, just so far in the early Trump Administration have been some of President Trump's strongest adversaries, bringing numerous lawsuits against the Trump Administration and already frustrating much of the policy coming from Washington. And, I mean a couple of the prominent examples certainly, if you will show up here we shall see, is, whoa a bunch of pictures. Is New York's AG Eric Schneiderman who's been very active on numerous fronts against the Trump Administration. And even this sort of got caught under the radar a little bit especially with the hurricanes getting much of the media attention. But him joining up with Bob Mueller recently on investigating the Trump Administration, particularly some money laundering in Trump organization and Trump owned properties is actually quite interesting. Very interesting story that maybe we can talk more about in Q&A.

03:03: But in addition, you have people like California's AG, Xavier Becerra, who actually gave up a pretty high level political position in the house to take the vacated AG seat in California when Kamala Harris became a US Senator. And from day one or even before day one really, before Trump was even inaugurated said, "I'm going to be one of Trump's worst nightmares," or something along those lines. "I'm going to really put his feet to the fire." And this sort of thing from these Democratic AGs including these two and several others, follows in the footsteps of many Republican AGs who frustrated much of President Obama's agenda, throughout his time in office and particularly in the latter half of his administration, and that includes a former Oklahoma AG, current EPA Administrator Scott Pruitt, for one. Another one is former Texas AG Greg Abbott, who is now the Governor of Texas. Who somewhat infamously said when he was asked by a reporter, "So what's your typical day like?" He says, "I get up, I sue Obama and I go home." [chuckle] And that wasn't too far from the truth. And then also another one, West Virginia AG, current US Senate candidate Patrick Morrissey as well was very active against the Obama administration.

04:43: So the point of all this is to say that AGs, I think have really entered the national conversation and the national policy and politics arena, very dramatically over the last few years. And so what I would like to do in this talk, is discuss a bit and give a sense of how and when AGs really did get onto the national stage. And talk a bit about what they have been doing lately, in the early parts of the Trump Administration, and going back to the last couple of years of the Obama Administration. And also point out a few recent trends and things to look out for moving forward that I think are very interesting. So I will say that I'm gonna start with a little a bit of a history of AGs and their elevation to the national stage. And then I have kind of four main points that I wanna make, but I'm [chuckle] in a sense raising all sorts of issues all over the place. When I was putting together this talk I was like, "There is like five million things I could talk about. How am I gonna... To narrow this down, and I don't know if I completely succeeded in narrowing it down, but at least I'm raising a few issues that we can discuss as well in Q&A.

06:00: So, for a long time AGs were mainly focused on state level politics. And you can imagine things like a funeral home rips somebody off and the AG sues the funeral home for that. A very local, sort of issue. Or defending the state against law suits brought against the state. And this sort of stuff is still a lot of what AGs do, but the nature of the office has changed dramatically in recent years. And I think, things really started to shift in the 1970s and 80s in particular. That's where you start seeing the first shift, which was concurrent with the rise of what Lawrence Freeman calls, "Total Justice," in the 1960s-1970s. Which was this idea that, "Hey, if there's a problem, government should solve it. Government should do more in order to achieve justice in a whole range of areas." Whether that's civil rights or consumer protection, environmental policy and so forth.

07:08: And, as that sort of sense seeped more and more into society, you had various political players reacting to that. And AGs were certainly one. But another player that I think was really important in helping to explain the AGs ultimate rise is Congress. And this slide here, I think breaks all of the PowerPoint rules about too much text on the screen. But I did that on purpose actually, to emphasize that Congress has done a lot to really empower AGs. And to say, "Hey state level players, state level litigators, we want you to do more to not only enforce state level laws but also federal laws." So you see at the top, one of the most important ones, the Hart Scott Rodino Antitrust Improvements Act, really launched AGs in a more serious way into antitrust enforcement. So parallel to the Department of Justice. The Crime Control Act providing grants for state anti-trust enforcement as well. Medicare and Medicaid anti-fraud and abuse amendments gave tons of money to the States try to root out fraud in the Medicaid program. And obviously I'm not gonna go through all of these, but the whole idea is that piece by piece Congress empowered AGs to get more involved, not just on the state level but on the national stage as well.

08:43: And in addition, many AGs were taking the initiative to respond to this rise in total justice, by really re-shifting, or shifting the nature of their offices themselves. I mean, creating new consumer protection departments for instance, within the AGs office. And taking a more aggressive stance. And these two, Lewis Lefkowitz from New York, who is a moderate republican, kind of a Rockefeller republican, was a leader in this area. As well as Frank Kelly from here in Michigan, who was the longest serving AG for quite some time. Who played a big role in changing the nature of what the AGs office was about. So they, and several other AGs, really were pushing this idea that the AG should not just be defender of the state, but should be the people's lawyer. And should represent the people, and consumer protection, and an environmental litigation, and similar issues like that. So we have this sort of stuff going on. I mean congress was really starting to empower AGs in the 70s. AGs were taking the initiative to do more on the state level as well.

10:09: And you see increasing activity in the 1980s and into the 1990s. But, really the thing that really launched AGs onto the national stage, kind of what I call the "Big Bang" of AG activism, was the tobacco litigation of the 1990s, which ended in this massive settlement. Which is, still today even not adjusted for inflation, is the largest civil settlement in American history. $246 billion in one settlement, with all of the major manufacturers of tobacco and cigarettes. And these AGs, in the course of that settlement, not only brought a lot of money back to the States, under this theory that tobacco companies had lied about, or misled the public about the safety of cigarettes, and that had all sorts of impacts on state budgets, including, especially Medicaid budgets.

11:10: Not only brought that money back but also restructured the entire industry, in a way that placed all sorts of new restrictions on how tobacco companies could sell their products, market their products, and that relationship between the tobacco companies and the tobacco consumers were fundamentally changed after that. So this was a huge deal and it happened without the action of Congress. And in fact Congress had been debating, doing something about the tobacco industry but actually decided not to. Partially, and because of pressure from tobacco producing states, but didn't do anything. And the AGs really came in and said, "Well, if you're not gonna do anything, we're going to essentially make national policy through the settlement with the tobacco companies."

12:00: And ever since that time that's really when AG said, "Whoa, [chuckle] we expressed a lot of power right here, by restructuring the tobacco industry and really addressing an issue that was really big at the time. Why can't we just use this strategy elsewhere as well, and maybe we should think about our offices in a different way, and get involved more and more on the national stage." And that's exactly what they did. So, I think it's helpful to pause before I get to those four big points, that I want to make in this talk. I think it's helpful to break down in some ways, three basic types of AG litigation. So, this is something that I talk about in the book.

12:55: Three basic types of AG litigation that I'm happy to talk more about at some length in Q&A as well. But if we're gonna try to boil down what AGs have been doing. I think two types of litigation that have been important, are what I call, policy blocking and policy forcing litigation. And this is the litigation that tends to get the most press, most media attention. These are lawsuits that typically target either the president or federal agencies, and are aimed at either stopping, blocking policy, or telling the agencies "You must act, you must do something." So, policy blocking, I mean, there were lots of these at the end of the Obama administration. And really throughout the Obama administration that dealt with the Affordable Care Act, Obama's environmental policies, regulations dealing with the rights of transgender people, and so forth, the list goes on and on. So lots of attempts to block policy from going into effect.

14:14: The other side of that same coin in many ways, I call Policy Forcing Litigation, where the states are actually saying, "Hey, Federal agencies, you're not doing enough to either protect the environment, protect consumers, and you need to act. You need to do something." And I think the most famous example of this in a case that featured prominently at the earlier panel today if you were able to attend, with the three general councils of the EPA, was Massachusetts v. EPA Supreme Court case in 2007, which I think it's fair to say is the most important environmental case of all time, at least I'd make that argument. And that was led by Massachusetts and a number of other the AG's, who said that the Bush administration was not doing enough under the Clean Air Act to deal with greenhouse gases. And so they were calling on the EPA to do more.

15:06: So, that policy forcing litigation has been a prominent part of what AG's are doing too, but one that's gone a bit more under the radar, and features a whole heck of a lot of multi-state collaboration, is what I call, "Policy Creating Litigation." And this type of litigation unlike the former two, typically targets private corporations. Usually big international or interstate corporations and instead of being resolved by court judgments, tend to be resolved by legal settlements. So, again the tobacco settlement, I think is the classic example of something like this. And the importance of this, is that especially since the tobacco settlement, AG's have used this method to not only get pretty substantial amounts of money to the States and to consumers, from companies under theories of alleged fraud or consumer violations, but have used these settlements as almost a kind of quasi regulation, to put all sorts of new requirements, regulatory requirements, on companies that will then be monitored by in many cases the AGs themselves.

16:31: So, they'll say, "Well, you're not complying with your standards under the settlement." And you read these settlements which, I mean, obviously my... [chuckle] When I was doing research for this, I looked at settlement after settlement and your eyes kind of get all screwed up when you're [chuckle] reading all these settlements, over and over again. But some of them go on dozens and dozens hundreds of pages, and it reads like something an agency, would promulgate. But it's a legal settlement. So that's been a really prominent part of what AG's have done and I'd say, probably the biggest area after tobacco has been pharmaceuticals. The pharmaceutical companies have been the main target of this type of litigation. So, with that, I wanted to get to those four main points of the talk. And the first one is that AG's in the Obama administration and so far in the first few months of the Trump administration, have really continued to expand their role in national policy and politics, including employing new strategies for policy influence. So this has been a big trend. So, I did wanna show you a few kind of big line graphs that help to show this increase over time.

18:00: I mean one thing that I did for the book and I've done since is collect all this data about what AGs are doing and how they're collaborating, on a co-ordinated multi state basis, bringing lawsuits settling with corporations. And I'll show you some of those now. So this first one shows the increase in multi state settlements with private corporations every year. And you can see pretty clearly that thick red line, that starting in the late 1980s early 90s there was some increase of AGs collaborating together to settle with corporations. And that's really been increasing ever since. Through today where nowadays you typically in a standard year get something like 40 major national settlements with big corporations, that are signed onto by usually 30 or more AGs sometimes all 50. And I should say as well that in addition to the quantitative increase a lot of these settlements have gotten bigger in terms of the money involved, and also the strictness of those regulatory requirements that are included in a lot of these settlements.

19:17: So you have a pretty dramatic increase over time with this. And if you look at multi-state cases against the federal government, this is the trend line here. You see some, there were some multi-state cases against the Reagan administration, and then it really dipped interestingly enough through much of the Clinton administration, but you can see W Bush administration and in the last couple years in particular it's just totally shot up. So these are just counting the numbers of multi state cases that go after federal agencies or target the president himself. You see a pretty dramatic increase in the number of those cases as well. And I think when you... So, let me pause and say, so that's one big thing. I mean, you just have a heck of a lot more multi-state litigation.

20:19: So, AGs working together across state lines to go after private corporations, to go after the federal government and usually on highly salient things; healthcare, immigration, the environment, similar types of issues. A few other points about this expansion of multi-state activism. Again, I mean, AGs have continued in the last few years to use these three types of litigation to really have a substantial impact on national politics and policy. But a few other kind of interesting trends I think that are worth highlighting here; One, is that forum shopping has become a much more prominent strategy amongst AGs. The idea of going to a court that will be most favorable for the AGs claims in some ways becomes a lot easier when you're talking about multiple AGs. So if you say, "Well, it's not gonna be that great to sue in Texas, but heck suing in California is gonna work out for us." That's what they're going to do. And this has actually been true in many ways in both or all three forms of litigation.

21:31: So, republican AGs used this strategy quite a bit, especially in 2015, 2016 in the tail end of the Obama administration. For instance, the new rules that were collectively known as the transgender bathroom policy, for instance, were challenged by republican AGs but they did so not just in one big suit but in three different suits. One contained 11 AGs, another had 10 and another one had five. And they were all republicans. And they figured "Well, we're going to pick and choose which courts were suing in, if we sue in three different courts we're gonna have more chances of actually winning on one of these." And more recently, actually just this past week, you may have seen that Xavier Becerra, the California AG led a four state coalition in pushing back against Trumps announcement that he's gonna rescind DACA, Obama's immigration policy. And that follows on the footsteps of 16 other AGs, also all democratic, who brought suit in the eastern district of New York. A different court than where these four had sued. And the idea again is to get more possibility of winning.

22:54: So that's actually been one of the big trends in this area as well. [chuckle] They've become increasingly vocal, AGs have been increasingly vocal about threats of litigation as well. So threatening litigation almost immediately after something is announced. I mean, and this to me has been one of the big features of AG activism in the last, at the tail end of Obama and the beginning of Trump administration. The administration will announce something or rumors will get out that something is going to be announced and the AGs immediately will issue a press release like five minutes after saying, "We're going to challenge this in court by any means necessary." And this is well before they've thought out all the legal strategies they just say, "We're gonna find something, we're gonna challenge this." And so this has been, kind of an interesting development as well. It's like rapid fire litigation. They frequently submit letters and comments to federal agencies as well, sort of another way to try to lobby the federal government.

24:00: This has become quite common, both to lobby the federal government, but also to stake out a claim about where they stand. And it make it clear, "Hey, everybody, by the way, me, I'm Democratic. Massachusetts AG has joined with 18 of my fellow AGs to really push back on what the EPA is doing. And Scott Pruitt is ruining the environment and everything, so we wanna push back on it." I mean, and that sort of activity has happened much more commonly, as well.

24:31: And, this is actually a really key point, and gets to that intergovernmental conflict that was part of the title of this talk; is that AGs have been increasingly willing to clash with fellow AGs, both in terms of electoral politics, and also in their litigation strategies. So, just earlier this year, or let me back up and say for a long time, AGs had worked together in the National Association of Attorneys General. Which, by the way, a lot of businesses refer to as 'NAG' [laughter] nagging. But they'd work together, and that was formed in I believe 1917.

25:14: And so it's a longstanding organization, but just more recently right after the tobacco settlement, Republican AGs and Democratic AGs created their own Republican AG Association, and Democratic AG Association. And since that time, this was around 1999, 2002, they've become much more prominent in both fundraising for AGs, and as kind of a location of strategizing about what to do. So, very much on a partisan basis. But, one thing, even after the creation of DAGA and RAGA, they had agreed, kind of this informal agreement like, "Okay, you can target open seats." So, if somebody retires, then you can promote your republican or democratic candidate for that seat, but you don't go after incumbents. We're not gonna go after incumbent AGs, 'cause we all get along, right?

26:17: Well, that went by the wayside at the beginning of this year. In January both organizations said, "You know what, we're going after incumbents. We're gonna be spending heavily on defeating republican or democratic incumbents." So, that rule was totally wiped away now. They're just going after the other side. But then also in their litigation strategies, I'll just give one example of really interesting ongoing investigation, which is one that was spearheaded by the New York and Massachusetts AGs, both Democrats. Investigating Exxon Mobil for allegedly hiding climate risks. So saying that they essentially knew that climate change was a big risk to the environment, and to the United States. But, they hid this purposely from their investors, and from the public.

27:07: And so they... Eric Schneiderman, who is one of the spear... One spearheading this effort, essentially subpoenaed all these documents from Exxon Mobil, with a huge... Basically subpoenaing everything, "Give us everything." And Exxon Mobil, really said, "No, we're not gonna give you this huge amount of stuff." And they were fighting in court. Well, as this was going on, about a dozen Republicans AGs actually appeared on the side of Exxon Mobil against their fellow AGs investigation saying, "These two AGs are overstepping their bounds. They're violating the Free Speech rights of Exxon Mobil." And they took the position specifically against their fellow AGs, investigating under their own state laws.

27:53: And then you had Congress step in, and issue subpoenas to these state AGs saying, "We wanna know more about why you're harassing Exxon Mobil, in your own state investigations." So, I mean this is something that was... When this first happened, I was like, "Well, I'm not totally surprised that New York and Massachusetts are engaging in this investigation." But, then when that happened, pushing back so explicitly on their fellow AGs investigation, that was kind of a big moment, I think, and highlights where we are now, in terms of inter-governmental conflict.

28:29: And then the last thing here, I just wanted to mention this briefly, 'cause I find it very interesting. That one emerging realm of AG activity in the last year really, or last few months, has been review of private class action settlements. So, remember back to that PowerPoint where there was five million words on the screen? Well, one of the things, one of the empowerment statutes was actually the Class Action Fairness Act, which was meant to try to divert a lot of class actions into federal court, away from state courts, in an effort to try to cut down on private class actions, essentially.

29:13: But one of the things that it did to empower state AGs, is give them more ability to when there is a class action settlement, state AGs get notification of that settlement themselves. And then they can decide whether to review it or not. And so, [chuckle] one thing that AGs have done increasingly, is that, they'll get notified of a class action settlement, and then they'll say, "Oh, why haven't we brought a multi-state litigation on the same issue, against the same company?" And then use essentially the same issues again, suing again against the company for some consumer violation, or something. But, another thing that they've done under the Class Action Fairness Act is review private settlements in ways that are increasingly political. So, one example this summer, a coalition of several Democratic AGs announced that they were reviewing a class action settlement against Remington rifles.

30:16: And actually submitted legal briefs saying this class action settlement doesn't do enough to require Remington to put new safety features on their rifles. So this was a class action suit that had to deal with basically a product defect of Remington rifles. And they said, "This settlement doesn't go far enough, it should put a lot more regulatory requirement on Remington to make safer guns." And interestingly enough as soon as they did that a couple of months later, a coalition of Republican AGs filed a brief in the same case saying, "No, this should be accepted by the court. This settlement should be approved and what these democrats are doing is just trying to get some, like backhanded gun control through the review of private class action settlements". I mean it's kind of a weird thing and something that in many ways unintended when the Class Action Fairness Act was first passed but nevertheless, it's just another area in which there has been additional partisan conflict among AGs.

31:30: One other line graph, I think is coming next that I'll show you, is based on data that I collected from the supreme court. So, I was looking at all the briefs especially amicus briefs or merits briefs in the supreme court and a lot of civilian issues. And I looked in particular to see what party the AGs were filing these briefs. And I was especially attentive to briefs that were especially partisan in nature. So that contained all or almost all Democrats or Republicans on the briefs. And as you can see... Oh, I guess that wasn't the next slide. Let me get to that. The big point here, the second point that I wanted to make, I've already kind of introduced. That AG activism has become far more partisan in recent years mirroring the broader of polarization in American politics. And we see this in few different ways and I'll just give you one example of the travel ban challenges that a number of states have brought. I mean here is the coalition against the Trump administration. These are all the AGs and here's the coalition that intervened defending the Trump administration. Look at that, I mean it's all democrats versus all the republicans. And this sort of coalition has become far more common where even in the same case you'll have AGs clashing with one another on a completely or almost completely partisan basis. So the travel ban is one example there.

33:22: I think this next one is the line graph that you've all been waiting for at this point. [chuckle] Which is... It's not... Okay, there's... Let me just give you some examples of AGs challenges. These were to the Obama administration. And the reason why I just put a lot of these on the... Listed a lot of these, is to give you a sense that the increasingly, especially as the Obama administration preceded, were on, not just a lot of issues that in the past had gotten a lot of partisan conflict, especially environmental policy but, really ran the gamut of everything from the affordable care act, to the department of labor's persuader rule, to transgender bathroom policy, to shifting trusteeship of the internet to an international body.

34:14: I mean, essentially it was like, what just "Every regulation coming out of the Obama administration we're just gonna sue. Sue, sue, sue." And democrats have taken that up in Trump administration as well. And there is Obama's executive order on immigration as well. And Trump again, already, just in these early months of the Trump administration. The executive order on immigration, energy efficiency standards for appliances, the emoluments clause, something I had never thought that I would say in public.

[laughter]

34:48: Has actually been the legal basis of a lawsuit by the Maryland and D.C Attorneys General that is specifically going against Trump saying that Trump by inviting all the political leaders from around world, to the Trump Hotels in D.C are actually essentially accepting money in violation of the emoluments clause of the constitution. Who knew, well this is another kind of arrow being shot at the Trump administration. The department of education, fuel efficiency standards, and then the rescission of DACA, all on the table right now and subject to litigation by AGs.

35:27: Here's the line graph that I've promised multiple time now and I fail to give you. This is showing those briefs in the Supreme Court that have a partisan nature to them. So again all or almost all republican or democratic briefs. And you can see there were some, earlier on the 80s, the 90s, and it really kind of escalated to some degree during the Bush administration but has been mostly recently in the Obama administration has just taken off. So, the AGs are organizing on an increasingly partisan basis in filing these briefs, these lawsuits, and engaging in policy on the national level in that way.

36:19: I included this graph just to show you that at least one of the general contexts that's going on here is that Republican AGs, which had long trailed Democrats in holding state offices, and the AG's offices around the country have been much more successfully gaining these offices. And as you can see from my note here it's the 2014 elections, actually, that resulted in a Republican AG majority, of the AGs for the first time in the post-World War II period. So I mean, this was a state office that Democrats had dominated for a long time, but that domination is now over. And it's much more closely contested between Republicans and Democrats on this level.

37:04: The third thing, so the last two points are actually quite a bit briefer here, so I'll be able to sum them up pretty quickly, at the end of the talk here. Lot of... In some ways, throwing a lot of stuff out there, and a lot of stuff that might be kind of depressing in some ways, I don't know. [chuckle] But I do wanna emphasize, and this is actually really important, that as crucial as it is that AGs have in fact become much more partisan on the national level, as they've gotten more and more engaged in national politics and policy, there's still a number of areas in which AGs are working together on a bipartisan, cooperative basis. And these areas, I think are quite important and often surround big news items or things that are seen as big crises that require big action, and from the AGs perspectives, bipartisan action.

38:10: So, just to give a couple of examples, I mean, you've heard about this, probably at this point, or at least I'm notifying you, well you better check your credit reports at this point. [chuckle] So, just last week, last Thursday, I think, the announcement came down that one of the big credit reporting agencies had a data breach that spilled out about 143 million Americans credit data, social security numbers, all that stuff, into the hacker's hands here, and AGs almost immediately said, "We're going to look into this." And announced, "We've started investigations. This is on a multi-state basis, this is on a bipartisan basis, we're going to do something about this. And whether this means bringing lawsuits, trying to settle with the credit reporting agencies, we're going to take decisive action on this to force the company to reform its practices." And so, this actually follows a bipartisan settlement last year with the three major credit reporting agencies that led to some reforms. Apparently, not enough, but some reforms within the industry, especially dealing with transparency of how they're using the consumer data. So, that's one example, just a very recent example of some bipartisan cooperation.

39:31: But the big one right now is dealing with the opioid crisis. You have numerous AGs across the country. It's at least a couple dozen, if not three dozen at this point, maybe even more, that have ongoing investigations and even lawsuits against major pharmaceutical manufacturers, essentially alleging that these drug companies had tried to persuade doctors through deceptive means to over prescribe opioids, and now that has contributed to the opioid crisis in America. And this has very much been a bipartisan effort, where the states are piggybacking on each other. It might be a Republican AG one day, like Mike DeWine, or it might be a Democrat the next day. And Jim Hood, one of the few remaining statewide Democrats in the Deep South, from Mississippi, has actually taken a leading role here, but many Republicans have as well. So, this has been a really important area, and one that, just be on the lookout for this, because a lot of this investigation has proceeded under the radar, but I think that this has potential of being perhaps the most important single action that any institution, either on the federal level or on the state level, is taking to address the opioid crisis. So, whether this ends up being something like another tobacco settlement, we'll see, but it's gonna be very important. And again, one that's proceeded on a bipartisan basis.

41:15: Really the last thing that I'll say here, and the fourth big point, is that, I think it's clear at this point that AG activism has become a more institutionalized part of American democracy. AGs are here to stay at this point. And to the point where I think it's increasingly difficult to talk about policy, both on the state level and the federal level without, at some point talking about AGs and almost everything, at least on many, many major issues, from healthcare to immigration to environment to civil rights, and many others. And that institutionalization has meant and allowed AGs to take very quick action, as I alluded to before, where they're ready to go immediately. Whereas in the past, AGs were more reactive, so they would see what the national government is doing, and then if they don't like it they'd review their options and then they'd put together a legal case, decide whether it was good enough to go forward, and then a few months after, actually bring a lawsuit, potentially. But now, it's just like, five minutes after, you have AGs on Twitter tweeting about how they're going to sue. "What are the arguments? I don't know, but I'm gonna sue." So it's become a much more institutionalized part of the policy process.

42:50: So those are the four main points. I guess, I have maybe four minutes left. And I have... [chuckle] I'm throwing all these kind of threads and ideas out there, and I'm curious which ones you think or which ones you'd like to talk about a bit more in Q & A. But I did have just a couple other things to think about, and I'll briefly talk about these. Well, actually, one other thing on the institutionalized part that I did wanna mention... So this goes back to some line graphs, which I love, but that one line graph that showed the increase in partisanship in briefs filed in the Supreme Court, this comes from the same data. And just to indicate what's going on about the institutionalization of this activity, as you can see, I mean, partisan briefs filed by Democratic AGs has bounced around from year to year, but Democratic AGs have largely been there for quite some time, even in the 1980s. But notice if we break it down just on Republican AGs, I mean, during the Clinton administration, Republican AGs were basically not present. They were on a few issues here and there, but mostly it was governors that were pushing back against Clinton administration initiatives. AGs were just like, "Look, I got a fraudulent funeral home to deal with so you can deal with these national issues." But nowadays, that's totally different. So both Democrats and Republicans are very much involved in the policy process, so very much institutionalized.

44:22: So, very briefly, four additional concluding points, I think it's important to ask, number one: Can we really speak of the states in litigation when they've become so much more polarized? And I say this because, if you look at a lot of federal court cases, Supreme Court cases, they'll mention, "Oh, the state said this." But increasingly it's the states that are on both sides of the issue, and totally on a partisan basis. So it's hard to say what state interests or what the interest of the states are in litigation because of this sharpening polarization. The AGs' litigation monopoly is becoming increasingly contested. I won't say much about this now, but it's interesting that, especially in states that have governors and AGs of opposite parties, you have the governors saying, "Look, why are we ceding litigation to the AG, who I think is taking the state on a bad course? I'm gonna interject myself into the litigation." So, much of the litigation against the Obama administration, Jim Hood, that Mississippi Democrat AG who's kind of in a tough electoral position, I think, in a very red state, he was declining to enter a lot of these lawsuits, so the Republican Mississippi governor said, "I'm gonna do it. I wanna get myself on these briefs and in this litigation". So that's been contested.

45:57: I do think that AG activism is another illustration of the nationalization of state politics, how a lot of state politics has run more along the lines that you would expect from party platforms, and tracking a lot of the national issues that are going on. This certainly is not to say that there's not an area of state politics that is separate from what's going on in the national level, but nevertheless, I think the AGs show that state actors are much more attuned to what's going on on the national level and doing something about it. And then finally, in an area frequently divided government, and I mean, we're not technically in divided government now unless you don't count Trump as a Republican and some sort of Independent or something. But control of the presidency, control of Congress, has bounced back and forth, and there's divided government very frequently in American politics. And I think, under those circumstances, AGs' litigation can be especially prominent and powerful, because whether they're blocking policy or creating policy through settlements, stepping in where federal agencies won't, they're able to act and then the federal government is, whether you wanna call it powerless or unable in some way to react to the AGs, the AGs' policies often stand, whether through settlements or through court decisions favoring their side. So, I think with that, I will stop, and go to some Q & A.

47:42: Thank you.

[applause]

47:44: All right.

47:49: You basically have some time if you like to recognize...