WASHINGTON — Until this year, Hawaii Attorney General Doug Chin had never sued the federal government. Now, as the Trump administration embarks on a string of policies that Hawaii’s Democratic leadership opposes, it is likely to become a far more common occurrence.
Chin has sued the federal government three times since January, including twice to block President Donald Trump’s executive orders restricting travel from a group of majority-Muslim countries. In a third action, Chin joined 15 states and the District of Columbia in entering a lawsuit in defense of the Consumer Financial Protection Bureau, the government agency created by the Obama administration to mend banking practices that led to the mortgage meltdown and recession of 2008.
Other topics likely to emerge in the next four years as flashpoints for conflict between Washington and Hawaii are consumer protection, environmental regulation, social services, health care and other aspects of immigration policy.
Chin was appointed to his position as attorney general by Democratic Gov. David Ige in January 2015 after serving as a criminal prosecutor, a city official in Honolulu, and managing partner of Carlsmith Ball, one of the oldest law firms in the state.
“It’s very rare, the first time I’ve ever done it,” Chin told Civil Beat in an interview earlier this month.
He was sitting in a Foggy Bottom coffee shop taking a break while attending the conference of the National Association of Attorneys General in the nation’s capital. “Typically, it’s the opposite. It’s the federal government filing a lawsuit against the state because they are challenging how we are running our prison system or whether we are following Environmental Protection Agency guidelines.”
But things have changed since Trump was inaugurated, and Chin is starting to see himself in an expanded role as the protector of the people.
“With a Republican president and a Republican Congress, the only check and balance is the Democratic states, pushing back when necessary to make sure our laws and our Constitution are respected,” he said.
Chin, the son of Chinese immigrants who went to Stanford University and later to the University of Hawaii law school, is confident he is doing what is right. He said he expects he will be filing more lawsuits against the federal government in the next few years.
“People are really galvanized,” he said. “It’s a very exciting time to be a state attorney general.”
Chin isn’t the only Democratic attorney general to decide there’s a need to go to court to block actions by the federal government that may be wrong or unconstitutional.
“It seems likely that Trump will take a lot of actions Democratic attorneys general will oppose,” said George Jepsen, attorney general of Connecticut and president of the National Association of Attorneys General.
Most of them are joining forces to bring lawsuits rather than go it alone. The original lawsuit filed by Washington state against the first travel ban, for example, has drawn the support of more than a dozen Democratic attorneys general, including from Minnesota, Oregon, California, Massachusetts, Maryland, Virginia and the District of Columbia.
Similarly, Jepsen was joined by 15 attorneys general, including Hawaii, when he filed a motion in January to intervene in the Consumer Financial Protection Bureau case. The Democratic attorneys general believe the Trump administration will not provide “an effective defense” of the CFPB in a case that is challenging the agency’s structure.
In 2016, a three-judge panel of the U.S. Circuit Court of Appeals for the D.C. Circuit found the agency’s structure was unconstitutional. One possible consequence is that CFPB Director Richard Cordray could become an at-will employee. That would allow Trump, who has repeatedly criticized the CFPB, to fire him, the AGs say.
In their petition, the Democratic attorneys general said that weakening the role of the director of the CFPB — by making him subject to political influence — would undermine the power of the state attorneys general to effectively protect consumers against abuse in the consumer finance industry.
“With a Republican president and a Republican Congress, the only check and balance is the Democratic states.” — Hawaii Attorney General Doug Chin
The states’ top lawyers find themselves at the center of these kinds of conflicts because they serve as the senior legal advisors to their state governments, including the legislatures and state regulatory agencies. Most AGs have law enforcement responsibilities too, as Chin does in Hawaii, which means that in many ways they operate in parallel, or in conflict, with the federal government.
Moreover, most attorneys general have political ambitions of their own, to the point that the acronym AG is sometimes referred to as “Aspiring Governor.” And being a governor, in turn, is a common steppingstone to still higher office, including Congress and even the presidency. That means that many of the nation’s AGs look to lawsuits as a way to make a name for themselves.
In the past 20 years, it has become increasingly common for the attorneys general who are members of the political party opposing the president to fight the administration’s policies in court, a guaranteed way to make headlines.
In the years following President George Bush’s contested victory in 2000, many Democratic attorneys general sued Bush to prevent his administration from preempting state laws and initiatives, something that Bush had done to assert the overriding federal right to set policy.
During the Obama administration, in turn, Republican attorneys general converted their political objections to his policies into a legal wall of opposition, suing the federal government over its efforts to enact environmental regulations including the Clean Power Plan, to implement the Affordable Care Act, and to provide overtime pay to low-paid workers.
One Republican who built a national reputation with his repeated legal attacks on the Obama administration was Scott Pruitt, Oklahoma’s attorney general, who Trump has appointed to head the Environmental Protection Agency. As an attorney general, Pruitt repeatedly sued the EPA and the CFPB, working closely with energy firms and banks to craft his legal arguments.
To the Republicans, the opposition to Obama offered a certain tit for tat to what had happened in the Bush era, but now the process is repeating itself, and some aren’t happy about it. Many people have warmly applauded Chin’s forceful action in opposing the travel ban, but there is criticism, too.
About 29 percent of Hawaii residents voted for Trump for president, and comments to the Civil Beat website suggest that some readers think that Chin is trying to nullify the outcome of the national election by opposing Trump’s policies.
More than two dozen people have signed onto a change.org website circulating a petition to recall Doug Chin from office. Their website, which is sponsored by a group that calls itself The Sword and Shield of Hawaii, prominently features a kind of Maltese Cross, an ancient symbol associated with the Crusades.
“In filing his repeated and frivolous lawsuits against the President of the United States…Chin is endangering the people of the Hawaiian islands…and bringing a bad name and disgraceful reputation to the State of Hawaii,” the petition says.
Connecticut’s Jepsen thinks this kind of criticisms ignore past facts.
“When Bush was president, Democrats were aggressive on many fronts,” Jepsen said. “When the shoe was on the other foot, Republican attorneys general were challenging a lot of Democratic action. Now the shoe is on the other foot.”
But not everybody agrees that suing a president who controls both chambers of Congress is a good or practical strategy. The Trump administration has ample resources for extended legal battles and is staffing up the office of White House counsel with many experienced practitioners.
And now the Republican attorneys general are mobilized against the Democrats as well.
In 1999, there were only 14 Republican attorneys general in the country, with Democratic officials overwhelmingly holding that post in other states. That year, the GOP created a new group, the Republican Attorneys General Association. The GOP group is an entity separate from NAAG, which is bipartisan. RAGA’s main goal was to raise money to promote Republican candidates for attorney general.
By 2012, the Republican group raised $6.9 million, and used it to help elect like-minded candidates to office. In 2014, the amount climbed to $16 million, and in 2016, it raised $23.2 million.
According to the Center for Responsive Politics, which tracks campaign contributions, recent contributors included the Las Vegas Sands Corp., which owns casino hotels, and whose chairman and chief executive officer is Sheldon Adelson; Koch Industries, a conglomerate owned by two billionaire brothers, Charles and David Koch, and Ariel Corp., a Ohio-based energy firm headed by Karen Buchwald Wright.
In the 2016 election, when Trump won the presidency, all 27 Republican attorneys general retained their seats, and two more Republicans were elected, Curtis Hill of Indiana and Josh Hawley of Missouri. Now, 29 of the attorneys general are Republicans. According to RAGA’s website, that’s the highest number in U.S. history, and they are ready to cement their victories.
“Under the Trump administration, the role of the Republican attorneys general transitions from the ‘last line of defense’ to the ‘tip of the spear,’” the RAGA website promises, saying that the Republican AGs “will serve as a counterbalance to the Democratic attorneys general and their liberal job-killing agenda in activists’ courts.”
The back and forth between Democratic and Republican attorneys general may continue this week in Honolulu during a three-day meeting of the Conference of Western Attorneys General, which Chin chairs.
The bipartisan gathering is expected to include 17 attorneys general representing states and Pacific islands, with panel discussions focused on renewable energy, sustainability and open government.
Chin acknowledged in the Civil Beat interview that there was some risk in the legal posture the Democratic-leaning states were taking because in his meetings with some federal officials in Washington, there was an implication that they might “somehow penalize us if we don’t cooperate in terms of their agenda.”
Fighting the Trump administration with a smaller pool of Democratic attorneys general will add to the challenges, Jepsen said, but he said that they are motivated and eager to engage.
“We’re totally ready,” he said. “We fight way above our weight.”
Chin is one of a small number of attorneys general who holds his post as a government appointee and did not have to raise money to run for office. He says Hawaii’s system for selecting an attorney general — through appointment by the governor — spared him considerable time and trouble, given that the average cost of running for attorney general is now $4 million to $5 million.
“The biggest difference I see between myself and the other elected AG’s is that I don’t need to run and raise money,” Chin said. “The thing that’s really great about our system is I don’t feel any motivation to try to satisfy financial interests.”
He said that as the Trump administration cuts back on regulations, he sees Hawaii’s role as “stepping up to fill the gap. There are whole areas where the federal government is not going to be stepping in at all.”
Still, he said it is important not to go too far in opposing policies just to be contrary.
“We can’t just push back against everything,” he said. “But if we get the sense there is a constitutional violation, or it’s against our laws, we need to fight back, if only to preserve the integrity of what makes the American society what it is, the world we all grew up in.”