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Conservative InnovatorsHow States Are Challenging Federal Power$
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Ben Merriman

Print publication date: 2019

Print ISBN-13: 9780226620282

Published to Chicago Scholarship Online: January 2020

DOI: 10.7208/chicago/9780226620459.001.0001

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State Office as a Support Structure for Conservative Legal Activism

State Office as a Support Structure for Conservative Legal Activism

(p.30) Chapter Two State Office as a Support Structure for Conservative Legal Activism
Conservative Innovators

Ben Merriman

University of Chicago Press

The conservative legal movement reshaped the American judiciary and made litigation a central feature of modern conservative strategy. This chapter describes how state attorneys general allied with this movement engaged in cooperative multistate litigation against the Obama Administration over matters such as the Affordable Care Act, environmental protection, voting rights, and immigration policy. In these challenges, conservatives relied heavily on administrative procedure claims in place of a traditional vocabulary of states’ rights, and emulated liberals’ successful use of state positive rights guarantees. The control of state offices by actors sympathetic to conservative legal movement goals resolves a number of problems that ordinarily limit the reach of such strategic litigation. State attorneys general control enormous material and legal resources. The special status and legal authority of state governments allows litigants to generate claims not available to private actors. As elected officials, attorneys general have both discretionary control of cases and strong political incentives to litigate. Conservatives thus used state government as a readymade support structure for strategic litigation. Sustained pressure enabled these states to achieve remarkable successes against the Obama Administration even in the absence of a major shift in doctrine or a plain landmark victory.

Keywords:   conservatism, conservative legal movement, attorneys general, federalism, litigation, courts, administrative law, Affordable Care Act

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