State Attorneys General and their Challenges to Federal Policies: Insights from the Texas v. California Litigation Regarding the Affordable Care Act

Abstract

This article explains a rising trend in American politics: the increasingly prominent role the state attorneys general (AGs) play in challenging federal policies. It focuses on one particularly important case—Republican efforts to overturn the Affordable Care Act in Texas v. California. We consider how state AGs and solicitors general (SGs) drive policy efforts through litigation and the factors that contribute to their participation. We find, first, that although members of the out-of-power party in Washington are the ones who typically bring state lawsuits, the Texas litigation demonstrates that these lawsuits are also a vehicle by which members of the party in power try to achieve goals that are otherwise unattainable through the legislative process. Second, Republican AGs submerge partisan arguments in “constitution-talk” with the aim of achieving a policy goal that was defeated democratically. We reach these conclusions through content analysis of AG press releases and semi-structured interviews with litigators and other elite actors.