Unlimited Power: Energy Policy, State Politics, and Multistate Litigation Against the Federal Government

Abstract Multistate litigation against the federal government is now a ubiquitous feature of American politics. Yet while state Attorneys General (AGs) often frame these lawsuits as defenses of federalism, or challenges to the federal government’s constitutional authority, the reality is more complicated. AGs frequently file suit on statutory or administrative grounds in ways that shape the implementation of federal policy, without altering the constitutional structure of federal–state relationships. Evaluating recent trends in multistate litigation, this article considers whether states are more likely to challenge federal constitutional authority or the implementation of law. To answer this question, I present the results of a qualitative analysis of energy policy litigation over the last three decades as well as a quantitative analysis of multistate litigation across all policy areas. I find that most multistate lawsuits challenge federal implementation of law, rather than constitutional authority. In contrast to previous decades, litigation is now a tactic of first resort for states. Additionally, while most lawsuits overall challenge federal policy implementation, the Biden and second Trump administrations have seen a reversal of this trend, with most lawsuits challenging federal constitutional authority. These findings suggest that states are interested in not just reshaping or articulating federal–state boundaries, but in using federal courts to craft national policy.