Minutes after a ceremony swearing him into office in January, Attorney General Phil Weiser was swarmed in the Colorado Supreme Court chambers by a group of reporters who wanted to know what would be his first actions as the state’s chief law enforcement officer.
“There is going to be an ongoing opportunity for us to join a range of lawsuits that are protecting our Colorado way of life (and) our population and standing up for the rule of law,” Weiser said.
The Democrat wasted little time.
Through his first six months in office, Weiser has joined or launched eight lawsuits against President Donald Trump and his cabinet and filed six additional briefs in support of legal challenges to the current administration.
Democratic attorneys general have become their party’s front line of defense against the Trump administration’s policies, and Weiser is now standing shoulder to shoulder with his peers who have been pushing back against the White House since the first days of the Trump presidency.
In doing so, Weiser has quickly established himself as a key element of a potent national force that one peer in the group described as “potentially the fourth branch of government.” While not leading the charge, Weiser has secured a reliable spot in the center of the pack.
So far, Weiser has joined lawsuits against the Trump administration over the president’s emergency declaration to build a border wall along the southern border, the Obama-era program Deferred Action for Childhood Arrivals, or DACA, and the 2020 U.S. Census.
“He’s already shown himself to be a leader,” said Oregon Attorney General Ellen Rosenblum, a fellow Democrat who has been in office since 2012 and is among the pack’s most notable members. “I think we are looking to him, especially when it comes to developing theories of the cases that we’re bringing. He’s just right in there with us.”
There’s also a practical reason for getting involved in the cases: If other Democratic attorneys general were to win a case that Weiser didn’t join, Colorado could potentially be left out of being affected by that ruling.
Some Republican critics, however, say Weiser has gone too far, signing onto actions they say have little bearing on the state and making the attorney general’s office overtly political when it should be focusing more on ways to attack legal problems within the state’s boundaries.
“It’s just kind of all Trump all the time,” Republican operative Josh Penry said. “There are all these issues that don’t have to do with Donald Trump.”
Weiser said he has been working on a number of issues beyond his challenges to the Trump administration, from consumer protection to the opioid crisis. And he says when it comes to taking on the executive branch, he is simply doing what he feels is best for Colorado and its residents.
“I would like nothing more than to not to have to bring these cases,” he said. “If a Colorado attorney general didn’t stand up, … then I don’t see how you’re doing your job.”
Nothing new — nor unexpected
The work of attorneys general pushing back against a president in a partisan way is not unusual.
“These multistate lawsuits are definitely not a new phenomenon, and the coordination of attorneys general across state lines is not a new phenomenon,” said Sarah Chatfield, an associate professor of political science at the University of Denver. “But the pace of lawsuits does seem pretty new.”
For President Barack Obama’s entire eight-year term, according to an analysis by Marquette University professor Paul Nolette, the Democrat’s administration was hit with 59 multistate lawsuits from attorneys general. For Republican President George W. Bush, the number was 45 over his eight years.
Since Trump took office in January 2017, his administration has faced more than 70 multistate lawsuits.
“Is that because Democratic attorneys general are being a lot more zealous in these suits or is it because Trump has been much more likely to take these executive orders … that haven’t been fully vetted?” Chatfield said. “I think it’s probably a combination of those two things.”
And it should be no surprise that Weiser has been so active in being a check on the Oval Office. From early in his 2018 campaign for office, he promised to be a check on the executive branch.
“Checks and balances are part of what our constitutional scheme is about,” Weiser told The Colorado Sun during the 2018 election cycle. “Without Congress being an effective check, the states really are where it’s at right now.”
Weiser’s Republican opponent last year, 18th Judicial District Attorney George Brauchler, warned on the campaign trail that Weiser was going to be an activist attorney general. But voters backed Weiser by a 7-percentage point margin on Election Day as Democrats swept Colorado government.
“Is it unexpected? No. Is it a relatively high number for this early in an administration? I would say yes,” Republican Cynthia Coffman, Colorado’s attorney general before Weiser, said of all the challenges Weiser has launched against the executive branch.
Coffman’s predecessor, Republican John Suthers, sued the Obama administration over the Affordable Care Act, also known as Obamacare.
Then-Gov. John Hickenlooper, a Democrat, was so upset that he went so far as to file a lawsuit challenging Coffman’s legal authority to bring a case, the Clean Power Plan challenge, without the governor’s OK. He was unsuccessful.
(Weiser in February withdrew Colorado from the lawsuit challenging the Clean Power Plan.)
The ability to challenge the executive branch, in the end, was one that Coffman says she tried to wield rarely.
“I think you can dilute your voice and the power of your voice by joining every lawsuit,” Coffman said. “There are many requests to sign on amicus briefs or join their lawsuits. You really just have to make a determination and make some objective criteria about what you will join and what you won’t.”
When deciding which lawsuits to bring, Coffman said her office weighed whether a policy that was being challenged and the position the attorney general’s office would be taking were comparable or backed by a law in Colorado. Still, she faced criticism each time she challenged the Obama administration and, later in her tenure, when she did not sue the Trump administration over its decision to unwind DACA and ask a citizenship question on the 2020 Census.
“I tried to be very conscientious about that and pick and choose,” she said. “I definitely turned down more that I joined. I would say I turned down six for every one I joined. Maybe more than that.”
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Former Colorado Solicitor General Fred Yarger, one of Coffman’s top deputies, said he thinks that the trend can, in part, be attributed to the success of many of the lawsuits brought by attorneys general. For instance, the challenge to the Obama-era Waters of the United States rule worked, and Democrats have had success in blocking some of Trump’s immigration policies.
The lawsuit Suthers joined made its way to the U.S. Supreme Court, which kept Obamacare in place while limiting parts of the law.
“The AGs on both sides of the aisle are definitely — as has been the trend for many years — flexing their muscles when it comes to national legal policy issues,” Yarger said. “I think they’re becoming bigger players.”
Choosing which challenges to launch
Weiser says he has his own criteria for determining whether joining a lawsuit is necessary and appropriate.
“Two questions that get asked every single time: Is it illegal? Does it hurt Colorado?” Weiser said. “I can’t speak to how my predecessors approached these matters. I can only say, for me, I have a job to do. I take that really seriously. There’s lots of cases that I didn’t join because I believe it didn’t affect Colorado or I didn’t believe the law was violated.”
Take, for instance, a challenge by Democratic attorneys general against the Republican tax plan, alleging that it unfairly singled out blue-leaning states. Weiser says that was one lawsuit he opted not to join because he didn’t see how it impacted Colorado.
Troy Eid, a Republican and former U.S. attorney in Colorado, says he doesn’t think Weiser, his longtime friend, has really had that state-first mantra of taking legal action challenged.
“He insists he always puts Colorado first, but he has yet to be tested,” Eid said. “How effectively Phil defends the electoral college system from extremist tampering by the hard left will determine whether our AG will stand up for Colorado when it actually matters. Defending it is Phil’s chance to stick by what really matters, notwithstanding pressure from the radical fringe of his party.”
Eid was referring to a law passed this year signing Colorado onto the national popular vote compact, which, if enough states join, would force Colorado’s presidential electors to back the presidential candidate who wins the most votes nationally and not just in Colorado. Weiser has not taken a public position on the policy, which conservatives loathe, but a spokesman said he would defend the state law if challenged in court.
Some of the criticism leveled at Weiser has centered on the amount of money it takes to join or launch a lawsuit.
The Colorado Attorney General’s Office said Friday that it didn’t have available the cost breakdown for each of the lawsuits it has filed against the Trump administration. That’s because either they were brought on behalf of or in collaboration with a state agency that is being billed as a client for the work and the information can only be released with the agency’s consent, or because it doesn’t track the hours Weiser and his solicitor general spend on individual cases.
But both Weiser and Coffman say minimal resources are required to join a lawsuit already filed by another state or to submit a brief in support of an existing case.
“It really is not expensive or time consuming to sign on to a multistate lawsuit where another attorney general’s office has already done the research and written the brief,” Coffman said. “It literally is a few hours to review that brief and make sure that the attorney general of Colorado is comfortable with what the attorney general of another state wrote.”
Where things can get expensive are legal actions in which Colorado’s attorney general is the lead plaintiff.
Only one of the eight cases that Weiser has brought against the Trump administration is one that originated from within his office. That’s a lawsuit challenging the U.S. Justice Department’s decision to withhold law enforcement grant money because Colorado refused to agree to immigration-enforcement stipulations.
That legal action did take more time for the office to put together, according to Weiser’s office.
“I will take the issues as they come”
Weiser has not been as active as the country’s other Democratic attorneys general in pushing back against the Trump administration.
Pennsylvania’s Josh Shapiro, California’s Xavier Becerra and New York’s Letitia James are names more synonymous with the partisan battle against the Trump administration. Granted, they’ve been in office far longer than Weiser.
It also makes political sense given that those states are considered Democratic strongholds. Weiser is Colorado’s first Democratic attorney general since Ken Salazar left the post in 2005 and only the second person from his party to hold the post since 1991.
(Salazar declined to be interviewed for this story.)
“I think that’s not super surprising that you have these most solidly blue states be the most heavily involved,” said Chatfield, the DU professor.
But there are signs that Weiser is becoming increasingly front and center in the fight.
On the Democratic Attorneys General Association website, he is the first featured in a video about the importance of the attorney general position. “Our democracy is now at stake,” he says in the recording, which appears to be a not-so-subtle jab at Trump.
And his colleagues are increasingly seeing him as having potential.
“Absolutely I could see Phil quickly becoming a leader nationally in this work that we’re doing,” said Rosenblum, of Oregon.
John Walsh, a former U.S. attorney for Colorado who is now running as a Democrat for U.S. Senate, said he would expect to see Weiser continue challenging the Trump administration. That’s both because he thinks Weiser will continue to be a resource for his colleagues — especially on antitrust issues — but also because of the chance that by staying on the sidelines, the state won’t benefit.
Walsh, who served as Weiser’s campaign treasurer in 2018, pointed to the fact that federal district courts are increasingly wary of issuing rulings with nationwide implications, instead opting to limit the effect of their decisions to the states signed onto a specific lawsuit.
“In almost all of these, there is a scenario in which by having Colorado join, it would benefit more rapidly from having a favorable ruling,” Walsh said of the eight challenges Weiser has already filed against the Trump administration.
As for legal actions that he is planning on moving forward, Weiser wouldn’t reveal his thinking when he spoke to The Sun recently.
“I will take the issues as they come,” Weiser said.
Updated at June 17, 2019 at 9:50 a.m.: This story has been updated to correct Phil Weiser’s margin of victory in 2018. He won by 7 percentage points.