Bob Ferguson’s Playbook Won’t Work As Well for Trump 2.0—But He Should Run It Anyway. by Kendall Turner Governor-Elect Bob Ferguson likes to tout his record of success suing the first Trump administration while he was Attorney General. According to his office, the state filed or joined 99 lawsuits against the federal government between January 30, 2017 and January 19, 2021, and won the vast majority of them. (Full disclosure: I represented clients in one of these cases—the one challenging Trump’s rescission of the Deferred Action for Childhood Arrivals program—that wound up going to the U.S. Supreme Court.)  According to the Attorney General’s Office, “almost all of the costs of this litigation, and the expansion of our civil rights division and other civil law enforcement divisions, were funded by our agency using recoveries from successful litigation. These were not general fund dollars that would have otherwise gone to other purposes. Our office is revenue-generating (returning $70 for every $1 provided by the Legislature).” These stats are great PR. They helped land Ferguson on TIME Magazine’s 100 influential people list in 2017, and they may have helped carry him to the governor’s mansion. But the real win-loss record is a bit more complicated. Sure, Ferguson won more than he lost—but many of his wins were only short-term, or split decisions. It’s likely he wasn’t the thorn in Trump’s side that it seemed.  The Washington Attorney General counts at least eleven cases as victories even though it saw no lasting success in the litigation itself. Instead, in these cases, Washington challenged a Trump policy, and that policy was later reversed by the Biden Administration. Worse, some of the cases identified as wins epitomize winning the battle but losing the war. Consider the 2017 case California v. Department of Transportation, in which Washington and other states claimed that the Federal Highway Administration unlawfully suspended the effective date of a federal regulation aimed at reducing greenhouse gasses. After the lawsuit was filed, the agency announced it would reinstate the effective date of the regulation. At the same time, however, it announced that it would seek to rescind the regulation entirely—and that’s exactly what it did. To be sure, defining what counts as a “win” in litigation can be complicated. Take, for example, the travel ban from Trump’s first administration. As Liz Porter, professor of law at the University of Washington explains, the administration lost the initial legal battles, but in response,  the Trump Administration revised the ban to include some non-Muslim countries and phase in restrictions over time—and the Supreme Court upheld the revised version. “Which way do you count that?,” asks Porter. (For what it’s worth, the Washington Attorney General’s website still counts it as a win.) But even claiming these grey area-type wins is likely to be much harder during Trump’s second term. First of all, “President Trump has both Houses of Congress and largely a sympathetic Supreme Court,” Porter notes. Having the deck stacked in this way means that Trump can more easily pass new federal laws and have them upheld in court. And “because federal law displaces inconsistent state law,” Porter explains, “the federal government may enact laws or regulations that effectively block state laws.” “One of the many reasons why we were successful with our litigation against the Trump administration was they were often sloppy,” Ferguson said during a recent press conference. But “this time around,” he added, “I anticipate that we will see less of that, and that is an important difference.” He also anticipates less pushback within Trump’s own administration, as he stacks the government with loyalists.  Despite recognizing that his playbook may not work as well for Trump 2.0, Ferguson seems to plan to run it again—and he should.  It’s easy to pooh-pooh this sort of precious commitment to orderly disputes in the face of Trump’s disregard of the rule of law and willingness to encourage violence in the halls of government, but Washington’s challenges to federal government action aren’t empty gestures. First, all roads don’t lead to SCOTUS. “While the Supreme Court feels particularly bleak as progressives looking for litigation wins, not that many cases are actually taken up by the Supreme Court,” says Lindsay Langholz, the Senior Director of Policy and Program at the American Constitution Society. “Biden has done a very good job of getting judges on the bench as well, and they’re on track to have as many if not more judges confirmed during his term as during Trump’s.” Second, delay delay delay. “Slowing something down can count as a win,” says Porter. Lawsuits can delay the implementation of a bad policy or law, and thereby protect people for at least their duration. These delays can make an enormous difference in individuals’ lives. Think, for example, of a lawsuit that temporarily prevents an abortion ban from going into effect. That delay, even if short, may help tens, hundreds, or thousands of people exercise reproductive freedom that they would lack if the lawsuit was never brought. Third, a loss can still help. A lawsuit that results in a loss can still gum up the works and distract the Trump Administration so that it has less capacity to do other shady stuff. Lawsuits can become a war of attrition that are not about the particular issues in the case as much as they are about diminishing the other side’s resources. Finally, our choices matter. Lawsuits serve an important symbolic function, communicating to Washingtonians that some people are fighting back and that Democrats can rise again. “One of the things we’re seeing a lot of conversation about is this idea of ‘compliance of advance,’” says Langholz. “To just quietly say, ‘hey, the courts are not particularly friendly to us right now, so we’re going to hold off,’ creates this huge vacuum of folks who are willing to go and make full-throated arguments on behalf of marginalized people in particular.” Langholz’s “hope is that people who are bringing lawsuits to vindicate their rights won’t talk themselves out of that.” Pekelis echoed the point. Asked whether various factors may make the Washington Attorney General less likely to prevail in litigation against Trump 2.0, he said: “That might be true, but that's not a reason not to try. You don't back down from a fight just because you think you might lose.”