Washington is one of 20 states that argued before the U.S. Supreme Court this past week to defend the Affordable Care Act against the third major lawsuit seeking to throw out the landmark health care law.
The Affordable Care Act is a federal law and the federal Department of Justice normally defends federal laws in court. But the Trump administration, instead, argued that the entire law should be struck down.
Washington, among other states, jumped in to fill the void in defending the law.
It’s been a recurring theme of the last four years. When the Trump administration has taken a controversial or contested executive action — seemingly as often as not — Washington Attorney General Bob Ferguson, and his team of 600 lawyers, have tried to stop them.
A Biden administration could mean much less of that. And it could mean that many of the dozens of lawsuits Ferguson is still pursuing against the federal government may become quickly obsolete.
Ferguson, by his own count, has filed 82 lawsuits against the federal government since Trump took office. The first was 10 days after Trump’s inauguration. The most recent was filed on Monday.
“It’s our anticipation that some, if not many, of these cases, the new administration will reverse course and undo,” Ferguson said in an interview this week. “But simply because of the new administration does not change our approach at all. We’re still litigating until we get the outcome we want.”
Some of those cases have been national, front-page headlines (the push to stop Trump’s initial travel ban on Muslim-majority countries) while others have barely raised a blip (a lawsuit to force the Federal Energy Regulatory Commission to release public records).
There have been lawsuits on the U.S. Census, 3-D printed guns, contraception access, family separation and the Post Office.
Ferguson, who was handily reelected to a third term Nov. 3, said his team is conducting reviews of all their active cases to try to determine what status they’ll fall under. Some may continue as active cases despite the new president.
Ferguson has four Freedom of Information Act lawsuits pending over the decision to move a National Archives facility away from Seattle, where it’s been for 73 years. There’s no guarantee that the Biden administration will make keeping the facility in Seattle a priority.
“Who will be making that decision, where in the bowels of the federal government is that happening?” Ferguson said. “It’s possible with this new administration there won’t be any change from that decision to move the archives, it’s entirely possible. We just don’t know, so obviously we’re going to be litigating until we get the outcome we want.”
On other issues, a change of course seems much clearer. Trump has, since early in his administration, moved to roll back more than 100 environmental rules and regulations, many of which sought to address climate change. Biden has pledged to re-enter the Paris Agreement on his first day in office and to move swiftly to reinstate environmental regulations Trump has nixed.
Ferguson has active lawsuits against Trump’s moves to ease restrictions on oil and gas facilities, pesticides, vehicle emissions, power plant emissions, light bulbs, asbestos and methane, among others. He is trying to stop Trump from weakening the Endangered Species Act and the National Environmental Protection Act, which he called the “magna carta of environmental law.”
Ferguson says he is confident the Biden administration will move to change course on these and other issues, but it won’t always be easy or simple to do so.
“Do I think the Biden administration will do what they can to undo the oil-drilling plan in the Arctic National Wildlife Refuge?” Ferguson said. “I do. They would want to do that. Whether they have that authority, that may be an open question.”
The Trump administration, for example, tried to end the protections that President Barack Obama had granted to Dreamers, through the Deferred Action for Childhood Arrivals (DACA) program. After Ferguson’s office challenged the move, the Supreme Court, citing procedural issues, stopped Trump from ending the program, but said he could try again.
It may, similarly, be difficult for Biden to immediately undo some of Trump’s executive actions.
“For some, it will be a gray area, it won’t be clear does the administration have that authority or not and that may lead to its own litigation,” Ferguson said. “The Biden administration may try to take an action and Republican attorneys general may challenge that. We just don’t know right now.”
As for the Affordable Care Act lawsuit, that was an action brought by Republican attorneys general against the federal government, but one that Ferguson felt compelled to oppose when the Trump administration would not.
Under a Biden administration, “It’s entirely possible we would not have been an actual party to the lawsuit,” Ferguson said.
Last Monday, the day before oral arguments at the Supreme Court, Ferguson said he had “no doubt we have the better legal arguments.” Even one of the conservative lawyers who spurred previous challenges to the health care law has written a brief urging justices to uphold the law.
But, citing the 6-3 advantage conservatives hold on the court, Ferguson said he was worried and the case represented an “existential threat” to the law.
On Tuesday, in oral arguments, both Chief Justice John Roberts and Justice Brett Kavanaugh appeared unwilling to throw out the entire law.
After that, Ferguson grew more confident. “Today is a good day for the 825,000 Washingtonians who rely on the Affordable Care Act for their health care,” he wrote.