State Attorneys General Diverge on Birthright Citizenship Executive Order

On January 23, 2025, Judge John C. Coughenour of the United States District Court for the Western District of Washington granted a TRO in one of two cases (in Massachusetts and Washington federal courts) brought by attorneys general of 22 states and the District of Columbia to enjoin implementation of a Trump Administration Executive Order concerning “automatic” birthright citizenship. The Order, set to take effect on February 19, 2025, absent an injunction, directed federal agencies not to issue citizenship documents to those born in the United States to a mother who is unlawfully present or lawfully present on a temporary basis and a father who is neither a U.S. citizen nor a lawful permanent resident. The 14th Amendment of the U.S. Constitution states: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

In advance of preliminary injunction hearings in the Western District of Washington scheduled for February 6, 2025, a second group of 18 state attorneys general have filed an amici curiae brief in that district, opposing the preliminary injunction being sought by the other AGs. The amici AGs opposing the injunction includes the Attorneys General of Iowa, Alabama, Arkansas, Florida, Idaho, Indiana, Kansas, Louisiana, Missouri, Mississippi, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, Utah and Wyoming.

On February 5, 2025, Judge Deborah Boardman of the United States District Court for the District of Maryland granted a nationwide injunction halting the Executive Order in a separate suit brought by immigration advocacy groups. The preliminary injunction hearings in the two cases brought by the state AGs are still scheduled to go forward.

Court Grants State Attorneys General TRO Enjoining Administration’s Funding “Freeze”

On January 31, 2025, Judge John McConnell of the United States District Court for the District of Rhode Island granted the TRO sought by 22 state attorneys general and the Attorney General for the District of Columbia challenging the Trump Administration’s “pause” or “freeze” of grant funding payments

The Court found that the attorneys general had a likelihood of success on the merits on their claims that the pause violated the Administrative Procedure Act, is arbitrary and capricious; violates separation of powers; and violates the Constitution’s Spending, Presentment, and Take Care clauses.  The Court reached its determination “[b]ecause of the breadth and ambiguity of the ‘pause,’” and therefore anchored its reasoning “based on the effect it will have on many—but perhaps not all—grants and programs it is intended to cover.”

In rejecting the Administration’s argument that the Rescission Memo from OMB mooted the case, the Court relied upon a tweet by the White House Press Secretary –and an email from the EPA sent after the Rescission Memo stating that money would not be disbursed while the EPA determined how to implement the funding “freeze” memo from OMB.  The Court found that “the OMB Directive that the States challenge here [is] still in full force and effect.”

To address the Administration’s statements that the “freeze” or “pause” would continue notwithstanding the Rescission Memo, the scope of the TRO prohibits the Trump Administration Defendants from “reissuing, adopting, implementing, or otherwise giving effect to the OMB Directive under any other name or title or through any other Defendants (or agency supervised, administered, or controlled by any Defendant), such as the continued implementation identified by the White House Press Secretary’s statement of January 29, 2025.”

Federal Judge in State AG Suit Signals Intention to Enjoin Funding Freeze, Despite Second OMB Memo Rescinding Prior Memo Directing Freeze

In the suit brought in federal district court in Rhode Island by a group of 23 state attorneys general to challenge the Trump Administration’s cessation of federal funding payments, District Court Judge John McConnell Jr. indicated on Wednesday, January 29, 2025, the Court’s intention to grant the TRO sought by the State AGs. An injunction in the State AGs’ suit would follow an injunction granted by a D.C. District Court on Tuesday, January 28, 2025, in a suit challenging the funding freeze brought by a group of not-for-profit entities.

Despite a two-sentence memo issued by the White House Office of Management and Budget stating that the prior funding freeze memo was “rescinded,” the Court reportedly described the OMB’s memoranda as “hugely ambiguous,” and relied upon statements of White House Press Secretary, Karoline Leavitt, in indicating the Court’s intention to grant the injunction.

Press Secretary Leavitt tweeted that the memo rescinding the funding freeze memo did not, in fact, lift the freeze, but only rescinded “the OMB memo.”  Leavitt made clear on behalf of the administration that the freeze remained in effect, but only “the memo” was rescinded to “end any confusion created by” the D.C. District Court’s injunction. 

State Attorneys General File Suit Challenging President Trump’s Freeze on Federal Grants and Loans; D.C. District Court Judge Temporarily Blocks Freeze

On January 28, 2025, attorneys general from 22 states and the District of Columbia filed a complaint in the U.S. District Court for the District of Rhode Island seeking a temporary restraining order against the Trump Administration’s proposed spending freeze on federal grants and loans. The state attorneys general include New York, California, Illinois, Rhode Island, New Jersey, Massachusetts, Arizona, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Maine, Maryland, Michigan, Minnesota, Nevada, North Carolina, New Mexico, Oregon, Vermont, Washington, and Wisconsin. The complaint alleges that the Office of Management and Budget’s (OMB) proposed pause on federal spending violates the Administrative Procedure Act because it is contrary to law and arbitrary and capricious, the Separation of Powers doctrine because it usurps the legislative function, and the Spending, Presentment, Appropriations, and Take Care Clauses of the United States Constitution.

Also on January 28, 2025, several nonprofit organizations, led by the National Council of Nonprofits, filed suit in the U.S. District Court for the District of Columbia seeking a temporary restraining order “to maintain the status quo until the Court has an opportunity to more fully consider the illegality of OMB’s actions.” The plaintiffs allege that the OMB’s proposed spending freeze violates the Administrative Procedure, is contrary to the First Amendment, and exceeds OMB’s statutory authority.  Judge Loren AliKhan—just one day after OMB issued the temporary pause, and shortly before it was to take effect—temporarily blocked the proposed pause, preventing the Trump Administration from implementing the spending freeze. Judge AliKhan’s temporary order will remain in effect until February 3, 2025, at 5:00 pm.


Large, Bipartisan Coalition of State Attorneys General Submits Comment in Support of FCC Robocall Mitigation Database Improvement Proposals


On November 12, 2024, under the leadership of the National Association of Attorneys General, 47 state AGs joined in a Comment responsive to the Federal Communications Commission’s recent proposals to increase accountability and accuracy in Robocall Mitigation Database (“RMD”) filings. See Notice of Proposed Rulemaking, Improving the Effectiveness of the Robocall Mitigation Database, WC Docket No. 24-213, et al., Adopted August 7, 2024.

The Comment notes that the RMD is an essential resource in State AGs’ efforts to combat illegal robocalls. Since 2021, providers have been required to register on the FCC’s database to operate as a voice service provider in the United States. The registration process, according to the Comment, has not prevented bad actors from obtaining legitimate registrations to send illegal robocalls.

The Comment notes that information submitted by providers to the RMD can often be false or inaccurate to the detriment of consumers. Such deficiencies can include false, incomplete, or misleading contact information, blank or inapplicable mitigation plans, and representations which are contradicted by other FCC filings or publicly available sources.

The coalition of AGs supports FCC proposals that include additional procedural measures after submission of required information to RMD; potential technical solutions to identify and require correction of data discrepancies in filings; measures to increase accountability for providers that submit inaccurate and false information to the RMD or fail to update their filings when the information they contain changes; and other steps to increase the effectiveness of the RMD as a compliance and consumer protection tool.

State AGs from the following States signed the submission: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming.

Kroger Agrees to Pay $1.37 Billion to State Attorneys General in Opioid Settlement

On Monday, November 4, supermarket chain Kroger finalized a settlement agreement with dozens of state attorneys general requiring the company to pay a total of $1.37 billion for its alleged role in failing to appropriately monitor the dispensing of opioids at its pharmacies.  The settlement resolves the states’ allegations that Kroger ignored red flags showing suspicious narcotics prescriptions that fueled the opioid epidemic.  The settlement involves 33 states and the District of Columbia, and multiple subdivisions and tribal nations.

The states that will receive the largest payments are Ohio, with 11.2% of the settlement amount; California, with 10.1%; and Texas, with 6.4%.  The funds will go towards opioid prevention, treatment and recovery programs. The settlement also includes injunctive relief requiring Kroger’s pharmacies to monitor, report, and share data about suspicious activity related to opioid prescriptions. 

North Carolina Attorney General Josh Stein led the settlement negotiations along with California Attorney General Rob Bonta and the attorneys general of Colorado, Illinois, Oregon, Tennessee and Virginia. Kroger, based in Ohio, initially announced the settlement in September 2023.  A spokesperson for the company stated that the finalization of the settlement resolves “nearly all the outstanding opioid-related claims” against Kroger. 

Multistate Coalition of AGs Supports Federal Price Gouging Ban

On October 30, 2024, sixteen (16) Attorneys General wrote to House and Senate Republican and Democrat leadership in support of Congress taking action to establish a federal penalty for price gouging during times of economic crisis. Despite varying types of anti-price gouging laws in 40 states, the AGs note that the national scope of product supply chains requires a federal-state partnership to adequately protect consumers and small business from price hikes, hoarding and supply restrictions that can result from profiteering. The letter seeks to distinguish its support for temporary, targeted price gouging prohibitions from price caps or ceilings of the past that were not narrowly targeted and harmed businesses responding to market conditions to maintain profit margins. The type of federal prohibition the group supports would be directed toward excess profit making in times of crisis, as states across the nation experienced during the COVID-19 pandemic and after global oil and gas market disruptions.

The letter notes that states have “successfully held up-chain distributors and manufacturers accountable for the harm they caused both to consumers and small businesses,” but that “without a national prohibition in place, states face resource challenges and additional litigation uncertainty when pursuing upstream, out-of-state producers and sellers” and “those gaps incentivize businesses to push price gouging activity up the supply chain in order to complicate price gouging enforcement by individual states.” A federal price gouging ban would assist in eliminating such incentive, according to the AGs.

In short, the AGs believe that a federal price gouging prohibition that complements current state prohibitions would “allow federal enforcement agencies, such as the Federal Trade Commission, to identify and restrain unjustified and irrational price increases throughout the entire supply chain, unconstrained by the complications of State-by-State enforcement”.

The letter was signed by the attorneys general of New York, California, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Oregon, New Jersey, New Mexico, Pennsylvania and Vermont.


Multistate Coalition of AGs Files Amicus Brief in Support of the Affordable Care Act’s Preventive Care Mandate

On October 21, 2024, a multistate coalition of 24 attorneys general filed an amicus brief before the U.S. Supreme Court in support of the Affordable Care Act’s preventive care mandate.  The challenged mandate requires private insurers to cover an array of preventive services (such as cancer screening, tobacco cessation, contraception, and immunizations) at no cost to consumers.

The case, Xavier Becerra vs. Braidwood Management, Inc., et al., involves a challenge to the U.S. Preventive Services Task Force, which sits within the Public Health Service of the Department of Health and Human Services (HHS), and was instructed by Congress to issue recommendations for preventive medical services that, under the preventive services provision, health insurance issuers and group health plans must cover without imposing additional out-of-pocket expenses on patients.

In June 2024, the Fifth Circuit partially upheld a March 2023 ruling from a Texas district court and determined that the structure of the U.S. Preventive Services Task Force violates the Appointments Clause because its members are principal officers of the United States who must be (but are not) nominated by the President and confirmed by the Senate. On that basis, it affirmed an injunction prohibiting the federal government from enforcing the preventive services provision against respondents.

Currently, the Supreme Court is considering whether to hear the case.  The attorneys’ general amicus brief urged the Supreme Court to grant certiorari and make clear that the Task Force’s structure is constitutional and that the preventive services provision can be enforced. The brief was filed by the attorneys general of Arizona, California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and Wisconsin. 

A copy of the brief may be found here

Multistate Coalition of AGs Supports FDA’s Denial of Marketing Authorization for Flavored Vape Products

On September 3, 2024, a multistate coalition of 20 attorneys general filed an amicus brief before the U.S. Supreme Court in support of a decision by the U.S. Food and Drug Administration (FDA) to deny companies the ability to market and sell certain flavored e-cigarette products across state lines.

The amicus brief emphasized what the attorneys general described as the “serious health risks” of flavored e-cigarettes (particularly for youth), and argued that the FDA’s statutory authority over the introduction of new tobacco products into interstate commerce is a crucial complement to state and local regulation of flavored e-cigarettes.  The attorneys general explained that while states have adopted a variety of measures to restrict sales of flavored e-cigarettes, these products continue to flow through interstate commerce, necessitating continued FDA oversight.

The case is Food and Drug Administration v. Wages and White Lion Investments, LLC, dba Triton Distribution, et al., and arises from a lawsuit filed by companies challenging the FDA’s denial of their applications to market and sell flavored e-cigarette products across state lines.  In January 2024, the Fifth Circuit Court of Appeals ruled in favor of the applicants’ challenge.  The attorneys general encourage the Supreme Court to reverse that decision.

The amicus brief was filed by the attorneys general for Arizona, California, Colorado, Connecticut, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington.  A copy of the brief may be found here

State Attorneys General Advocate for Surgeon General’s Warning Labels on Social Media Platforms

On September 9, 42 state attorneys general joined a National Association of Attorneys General Letter to House and Senate leadership supporting legislation to establish a surgeon general’s warning label on algorithm-driven social medial platforms, stating that social media is associated with significant mental health harms for adolescents. According to the state AGs, such platforms represent a serious public mental health threat, closely linked to youth depression, anxiety and suicidal ideation.

The Letter follows previous efforts taken by state attorneys general— including Arkansas, Indiana, Iowa, Kansas, Nebraska, New Hampshire, and Utah—but  advocates for federal intervention. 

According to the AGs’ letter, a federally mandated surgeon general’s warning “would be a consequential step toward mitigating the risk of harm to youth.” The authors urge Congress to seriously consider this and other steps to protect youth in the face of emerging technologies, citing the Senate’s passage of the Kids Online Safety Act and Children and Teens’ Online Privacy Protection Act as evidencing bipartisan commitment to protecting youth online.

The following state attorneys general signed the Letter: Alabama, Arkansas,  American Samoa, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, U.S. Virgin Islands, Utah, Vermont, Virginia, Washington, Wisconsin and Wyoming.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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