The Takeaway: Why Attorney General Races Draw National Attention (and Donations)

The US Supreme Court in 2006 gave the states the special right to sue the federal government when other organizations can’t. But the real reason it’s happening is because of the integration of our economy.
— James Tierney

From WNYC’s The Takeaway:

As the state’s “top lawyer,” attorney generals have become national players in fights over everything from the health care law and immigration, to marijuana and gay marriage. They were also responsible for bringing in close to $100 million in election donations this year. James Tierney, Former Attorney General for Maine and founder of, breaks down why attorney general races matter — and what they're worth.

Click the ‘play’ button below to hear this segment.

These 8 Attorney-General Races Could Make A Big Difference To Trump’s Agenda

State attorneys general have become nationally more important in a time of political gridlock, said James Tierney, a former attorney general of Maine and a lecturer at Harvard Law School. Apart from their ability to sue the federal government directly, there are other ways for AGs to influence policy — whether they believe the problem is federal overreach or underreach. They can, for example, limit how much state and local law enforcement officers cooperate with federal immigration agencies or step in to sue companies when they believe the federal government isn’t doing enough to protect citizens.

Amelia Thomson-DeVeaux and Nathaniel Rakich, “These 8 Attorney-General Races Could Make A Big Difference To Trump’s Agenda,” FiveThirtyEight, October 22, 2018.

State AG races are ‘where the action is’ this fall

‘Ever since tobacco [litigation in the 1990s], the AGs have become national figures.… Even a small state AG can impact a national corporation. So if the AG of Maine decides that Dunkin’ Donuts [for example] is doing something wrong … then that gets on the Internet and Dunkin’ Donut franchisees all over the country get nervous because of what somebody did in Maine.’

‘And because the economy is integrated, does it really make any difference whether it is an assistant AG in Connecticut or an assistant AG in Missouri who looks at Dunkin’ Donuts? The answer is no.’

‘So with that integration at work, the question is what is actually happening here [with races for state attorneys general getting more play and attention, and more partisan],’ Tierney added. ‘There may be much less there than meets the eye.’

Kirk Victor, “State AG races are ‘where the action is’ this fall,” FTCWatch, Issue 946 (newsletter), September 17, 2018.

The Most Effective Way for Democrats to Fight Trump’s Agenda Isn’t Where You Think It Is

The end of the incumbency rule, says Tierney, could make it more difficult for attorneys general to collaborate on litigation that affects many states, red and blue, including against pharmaceutical companies. ‘Now that AGs can run against other AGs, I imagine it’s pretty difficult for them to have confidential discussions across party lines, and that’s a problem,’ he says.

Wisdom of another opioid lawsuit questioned

Trump’s directive for a ‘major lawsuit’ [against opioid manufacturers] made at a Cabinet meeting Thursday, ‘doesn’t make sense,’ said James Tierney, former attorney general of Maine. ‘There’s so much leverage that the federal government already has. They don’t need to use a court system.’

.... ‘If the president really wanted to do something about opioids,’ Tierney said, he could implement many of the 56 final recommendations, widely praised, from the commission he appointed Chris Christie to lead two months after taking office.

Sarah Owermohle, "Wisdom of another opioid lawsuit questioned," Prescription Pulse, Politico, August 20, 2018.

Josh Shapiro driven by ambition, desire to tackle big problems

‘[PA AG Josh Schapiro] took over an office that obviously was in real crisis and he turned it around very quickly,’ said James Tierney, a Harvard Law School professor and former Maine attorney general who works with attorneys general around the country. ‘He’s shown real leadership.’

Wes Venteicher, "Josh Shapiro driven by ambition, desire to tackle big problems,", Aug. 26, 2018.

With Schneiderman Out, Environmental Fight Loses a Prominent Voice

In the wake of scandal, the shock to staff members is keenly felt, but ‘after a day, the assistant A. G.s will get back to work,’ Mr. Tierney said. In fact, he said, cases might proceed more smoothly without Mr. Schneiderman, whose tendency to garner publicity for himself could be a distraction.

John Schwartz, "With Schneiderman Out, Environmental Fight Loses a Prominent Voice," New York Times, May 9, 2018.

With Eric Schneiderman out as NY attorney general, who will lead the Trump resistance?

‘All of the work they were doing yesterday they’re doing today,’ Tierney told NBC News, adding that the New York attorney general’s office has a talented staff. ‘This isn’t about any individual, this is about our Constitution and our laws. We’ve got a lot of professional prosecutors who are working while we’re talking.’

‘Nothing Changes’: NY AG Will Remain Check On Trump Without Schneiderman

‘Absolutely nothing changes,’ James Tierney, former director of the National State Attorney General Program and lecturer at Harvard University, told TPM.

’He’s got a great staff,’ Tierney continued. ‘Nothing is going to change. There’s no legal difference.’

Allegra Kirkland, "‘Nothing Changes’: NY AG Will Remain Check On Trump Without Schneiderman," Talking Points Memo, May 8, 2018.

Vice News Interview: Are opioids the new Big Tobacco?

A number of Attorneys General began investigating the marketing practices of the opioid industry using a tobacco model. Now the judge could do several things. He’s got to figure out a way to sort through these law suits and to settle them in a way that money goes to public health and doesn’t just waste it the way they did much of the tobacco dollars. We should use it to address the huge issue at the moment which is the inability of addicts, 2.2 million addicts, to get appropriate care.

Cassandra Giraldo, Here’s why Big Pharma won’t pay for opioid deaths like Big Tobacco pays for cancer, Vice News, Apr 23, 2018.

For the full interview, "Are opioids the new Big Tobacco?," see the April 16, 2018 episode of Vice News Tonight, available on HBO.

Activist state attorneys-general take on Trump and Facebook

Today all 50 states and the District of Columbia have an officer with the title of attorney-general. All but a handful are elected in partisan elections, and all reflect the core philosophy of their respective political parties. And most importantly, each one has the extraordinary power to go to court to challenge the decisions of the US president or anyone else that affect their home turf.
— James Tierney

James Tierney, "Activist state attorneys-general take on Trump and Facebook," Financial Times, March 27, 2018.

NOTE: Access to this article by direct URL requires a subscription to the FT. But if you Google the title, at the time of this writing, the link generated behind the scenes by Google will route around the firewall and take you to the article. We can't use that link here as it would violate the FT's terms of service.

From Opioids to Guns: Cities, Counties Step Up Civil Suits

‘Attorneys general are … in a much better strategic position [than cities and counties] to decide when to sue opioid manufacturers, and what claims to make, because they have the authority to issue civil investigative demands to companies,’ Tierney said.

…’What we have with the opioid crisis is a national issue that should be resolved nationally through the attorneys general, whether through use of contingency fee counsel or not,’ Tierney said.

Peter Hayes and Steven M. Sellers, "From Opioids to Guns: Cities, Counties Step Up Civil Suits," Bloomberg BNA, March 15, 2018.

How Supreme Court's Internet Tax Case Was Built 'From the Ground Up'

‘It happens all the time,’ said former Maine Attorney General James Tierney, now a Harvard Law School lecturer who advises state attorneys general. Tierney did not want to comment on the Wayfair case specifically, but said that in general, it is not uncommon for states to pass laws they know would be tested at the Supreme Court. State laws on abortion rights and immigration, for example, have been passed in defiance of court precedents, Tierney noted.

But Tierney said that in recent years, he has detected more of ‘a defiance, a roughness in the air’ in cases brought to the Supreme Court aimed at busting precedents. ‘People are getting more feisty, more interested in challenging all this,’ he said. ‘You have these large interest groups that say, ‘We don’t care, let’s push it.’’

Tony Mauro, "How Supreme Court's Internet Tax Case Was Built 'From the Ground Up,'" The National Law Journal, March 16, 2018.

Illinois Attorney General race a battle over independence

The attorney general acts as the state’s chief prosecutor in Rhode Island, Alaska and Delaware, according to Harvard lecturer and former Maine Attorney General James Tierney. He adds that attorneys general are in a unique position to prosecute cases as they have more resources and are independent officials….

Sarah Zimmerman, "Illinois Attorney General race a battle over independence," The News & Observer, March 10, 2018.

Trump officials look to Southern attorneys general to fill court vacancies

When the Trump administration wanted to fill out court vacancies in the South, it turned to the Republican attorneys general in many of those states, tapping their talent to build the army of conservative judges GOP activists were hoping for.…

James Tierney, who served as attorney general of Maine from 1980 to 1990, said it’s a natural place to look, since those offices stockpiled conservative talent during the Obama administration. And given how much GOP-led states battled the Obama administration, those lawyers were involved in the big fights of the day.

‘They come predisposed toward looking at national issues, and you see, AGs are involved in many national issues,’ Mr. Tierney said.

Alex Swoyer, "Trump officials look to Southern attorneys general to fill court vacancies," The Washington Times, February 22, 2018.

Illinois Attorney General Candidates Detail Plans For Police Oversight

‘You can’t be an attorney general … without paying serious attention to the quality of criminal justice in your state. It’s probably your prime responsibility,’ said former Maine attorney general James Tierney, a Harvard Law School lecturer.

Patrick Smith, "Illinois Attorney General Candidates Detail Plans For Police Oversight," BGA (Better Government Association), Feb 5, 2018.

After Defeat in New York, State AGs Are Next to Test Emoluments Challenge

‘I think the AGs are the only plaintiffs who have a shot at standing,’ said James Tierney, a former Democratic attorney general from Maine, and a lecturer at Harvard Law School.

That’s because, he explained, states have unique standing to challenge the federal government. Tierney said there is no wording in the emoluments clauses about how they should be enforced, and the state would be a “natural enforcer” of the clauses because of its interest in preserving its constitutional rights.

Cogan Schneier, “After Defeat in New York, State AGs Are Next to Test Emoluments Challenge,” The National Law Journal, January 24, 2018.

BuzzFeed: We Took On Big Tobacco. It's Time To Take On Big Opioid.

We need to start discussing the contours of an opioid settlement today, and to demand that public health principles be front and center. Without that discussion, and the priorities that emerge from it, we are destined to repeat past mistakes that must not be repeated.
— James Tierney

James E. Tierney, "It's Time To Take On Big Opioid Like We Did With Big Tobacco," BuzzFeed News, January 10, 2018.

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