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Who will defend the federal government against itself? Donald Trump’s administration is waging an aggressive campaign against the executive branch as it has long existed. Democratic leaders in Congress have demonstrated in the past week that they have neither the ability nor the will to slow Trump down. Individual federal employees—such as former Special Counsel Hampton Dellinger, whom I profiled last week—have sued, but such suits take time and money that few individuals possess.

State attorneys general, though, see an opportunity. This month, the chief law-enforcement officers of blue states have been working to enforce federal laws against the federal government, and they’ve had some success.

Last week, a federal judge in Maryland ordered the government to temporarily rehire thousands of probationary federal workers in many departments. The judge, James Bredar, concluded that the administration had mass-fired workers using bogus claims of performance issues rather than the required procedures for a reduction in force. “The sheer number of employees that were terminated in a matter of days belies any argument that these terminations were due to the employees’ individual unsatisfactory performance or conduct,” he wrote.

That’s plain enough. What is interesting is that the suit was brought not by the workers who’d been fired but by Democratic attorneys general in 20 states. In order to convince the court that they had standing to intervene, even though the workers are private citizens employed by the federal government, they alleged that their states were harmed in various ways, focusing on how the failure to provide the legally required notice of the terminations left states scrambling to provide services to the workers. They also argued that the layoffs harmed the states because of lost income taxes. Bredar was fairly skeptical of some of the economic arguments but found that the states nonetheless had standing to sue.

The probationary-workers case is just one of several such lawsuits. In another last week, 21 states petitioned courts to prevent the Education Department from firing hundreds of workers. Meanwhile, the Trump administration has asked the Supreme Court to review rulings by lower courts, which were successfully petitioned by state attorneys general, that block his executive order purporting to get rid of birthright citizenship. If you’re not a fan of the Trump administration, these developments may seem like great news. But what’s legal for the goose is also legal for the gander, which is why state lawsuits on federal issues are something that should perhaps give all Americans pause.

States have long sued the federal government over alleged impositions on their prerogatives, but in 2007, after Massachusetts sued the EPA for failing to regulate carbon dioxide, the justices ruled for the state and said that states have special standing to sue in federal court to ensure that federal agencies are following federal laws. State attorneys general were more than happy to take advantage of the new leeway.

“What we’ve seen since around the George W. Bush administration is this massive increase in state lawsuits,” Tara Leigh Grove, a law professor at the University of Texas, told me. “It’s just the name of the states that change from administration to administration.”

That time period coincides with increasing partisan polarization. Although attorney general is ostensibly a lawyerly position, an old joke runs that AG is an abbreviation for aspiring governor. Having a big legal fight with a president of the opposing party is a good credential to have as a candidate. In 2013, then–Texas Attorney General Greg Abbott described his job this way: “I go into the office in the morning, I sue Barack Obama, and then I go home.” Since then, he has landed a new job—as governor of Texas.

Two partisan organizations, the Republican Attorneys General Association and the Democratic Attorneys General Association, have grown in importance in recent years, raking in millions in outside contributions. These groups are subject to the same capture by special interests that has come to dominate other areas of politics, with the same warping effect on their incentives that it has everywhere else.

Even when attorneys general aren’t motivated by base partisanship (in both senses of the word base), they don’t necessarily represent the interests of all Americans. What is valuable and important to constituents in Nevada may be very different from what’s valuable and important to those in South Carolina. This is why we have a federal government that sets national policies, but in a moment of tumult, state attorneys general are one of the few forces that can battle Washington.

Grove told me she understands why Trump critics might see lawsuits by state attorneys general as a godsend. The administration is taking many actions that “neither Republican nor Democratic administrations have thought to do, and that’s really, really jarring,” she said. “There’s a desire for a check in the system, and right now, a lot of people are looking to the courts as the key check to the system.”

But not all checks are created equal. One of my enduring interests in the Trump era has been the ways in which he forces the country to choose between bad and worse situations. For example, charging a former president with crimes sets a dangerous precedent that could precipitate political retribution, but not charging a former president who allegedly absconded with documents and attempted to subvert an election sets an even worse one.

Something similar, though less drastic, is at play here. Is it better for states to have no recourse at all, or to have recourse that the other political side can use to tie you in knots? You might have approved of Texas Attorney General Ken Paxton using such suits to hamstring Joe Biden’s administration—but if so, you might be less enthused about Maryland Attorney General Anthony Brown using the same methods to prevent Trump from enacting his priorities. And the flood of state lawsuits producing nationwide injunctions has made it more difficult for presidential administrations of either party to implement their agenda.

Some scholars see more positive effects. They note, among other things, that state and federal implementation of laws is so intertwined that attempting to disentangle the interests of each is practically impossible. They also celebrate state lawsuits as a tool of dissent—for example, from the excesses of the Bush-era Patriot Act. But enlarging the power of states cuts both ways. Progressives have historically been skeptical of states’-rights arguments, in part because they were once used to defend racist policies within state boundaries. In a nationally polarized environment, where states are asking courts to block laws nationwide, the effect is even broader. One state’s dissent is another state’s outrageous obstruction.

Grove wrote a law-review article in 2016 arguing for more stringent limits on state standing. “It’s been really interesting, the different reception that that article has gotten over the years,” she told me drily. When it was published, during the Obama administration, progressives agreed with her; once Trump took office, suddenly it was conservatives who most appreciated the argument. The valence flipped again during the Biden presidency. Maybe there should be a golden rule of state lawsuits: Sue your political opponents as you would like to be sued.

Related:

• Democratic states’ new anti-Trump strategy (From 2024)
• The law can still constrain Trump.

Here are four new stories from The Atlantic:

• Musk comes for the “third rail of American politics.”
• The Kennedy Center performers who didn’t cancel
• Chuck Schumer is cautious for a reason.
• What the press got wrong about Hitler

Today’s News

1. The Pentagon was scheduled to brief Elon Musk today on a military plan for the possibility of war with China, according to The New York Times. After the story published, Donald Trump denied it, and Musk met with Defense Secretary Pete Hegseth instead.
2. In a Truth Social post, Trump asked the Supreme Court to stop any nationwide injunctions from federal judges who have ruled against his administration’s actions.
3. Trump announced plans for America’s $1.6 trillion student-loan portfolio and special-education services, which are currently overseen by the Department of Education, to be managed by other government entities.

Dispatches

• The Books Briefing: How do we know when, or whether, to change our mind? Perhaps being persuadable is overrated—at least if it means “coming to accept the unacceptable,” Boris Kachka writes.

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Evening Read

Forever 21’s Brief, Hideous Life

By Kaitlyn Tiffany

Forever 21 opened in my hometown when I was in middle school, when the opening of a new store at the mall was still a big deal. When the sign first went up, nobody knew what “Forever 21” was. I remember thinking that it would be a store marketed to retirement-age women who felt young at heart—Forever 21! This was wrong, but not so far off: Do Won Chang, one of its founders, has said he chose the name because 21 is “the most enviable age.” And it is, especially if you are 13, 14, 15, 16, 17, 18, 19, or 20.

Read the full article.

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Culture Break

Watch. The Season 2 finale of Severance (streaming on Apple TV+) emphasized the show’s most philosophical queries, but one twist was hard to swallow, Sophie Gilbert writes.

Examine. A new Broadway production of Othello foregrounds what the play’s earliest audiences recognized: the psychological costs of war. The Shakespeare scholar James Shapiro, a consultant on the project, shares what the playwright got right about PTSD.

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Stephanie Bai contributed to this newsletter.

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