Alabama Attorney General Steve Marshall told a Mobile audience last week that state attorneys general across the country have taken on a far more assertive role in national policy fights than they held a generation ago, using litigation as a tool to check federal power regardless of which party occupies the White House. Marshall made the remarks in a speech before the Brevard Hand-Alex Howard Chapter of the Federalist Society in Mobile, one of the local chapters of the national organization of lawyers, judges and law students dedicated to the principles of limited government and the original meaning of the Constitution. The chapter, which carries the names of two of Alabama’s best-known federal jurists, regularly hosts state and national figures for discussions of legal policy, and Marshall’s appearance fit squarely in that tradition.
His argument was that the modern state attorney general has become one of the most consequential actors in American government, a position that hardly existed in that form a few decades ago. Where attorneys general once spent most of their time on criminal appeals, consumer protection and routine advisory opinions, the office now routinely files and defends lawsuits that can halt federal rules affecting the entire country. Marshall traced how that change happened, why it accelerated in Alabama, and what it means for the balance of power between the states and Washington.
How the Shift Began: The Tobacco Litigation
Marshall said the shift began in earnest in the 1990s, when a coalition of state attorneys general sued the tobacco industry and won a multibillion-dollar settlement. That case, he said, marked one of the first times attorneys general stepped outside the traditional criminal justice role to effectively regulate an entire industry without waiting on Congress to act. The settlement transformed public health policy and state budgets across the country, and it demonstrated that a group of state legal officers, acting in coordination, could reach an industry that federal lawmakers had left untouched.
In his telling, the tobacco litigation taught a generation of attorneys general a lesson about their own power. If coordinated state lawsuits could reshape an entire national industry, the same tool could be aimed at federal agencies and federal rules. The office that had once been seen as a state-level prosecutor became, in effect, a second front in national policy disputes, one that operates through the federal courts and answers to voters in the states rather than to Congress or the president.
The Template: Massachusetts v. EPA
He traced a similar pattern through a 2007 U.S. Supreme Court case in which Massachusetts successfully sued the Environmental Protection Agency, forcing the agency to classify carbon dioxide as a pollutant under the Clean Air Act. Marshall said that ruling, controversial among conservatives at the time, ultimately gave Republican attorneys general a legal template of their own. The decision established that states had standing to sue federal agencies over regulatory inaction, and it opened the door to a wave of state-led challenges to federal environmental and administrative policy.
For conservatives who had criticized the ruling when it was handed down, the irony was not lost on anyone in the room. Once the Court confirmed that a state could haul a federal agency into court to force regulatory change, the same mechanism became available to any state with a grievance against Washington. Marshall argued that Republican attorneys general simply learned from the example and applied it in the opposite direction, using the standing and the strategy that the Massachusetts case had validated.
Alabama’s Record in the Obama Years
During the Obama administration, Alabama joined a series of multistate lawsuits challenging federal rules it considered federal overreach. Marshall listed three examples that, in his view, defined the era. The first was the Waters of the U.S. rule, the EPA and Army Corps of Engineers regulation that expanded federal authority under the Clean Water Act over streams, wetlands and ditches far beyond traditionally navigable waters. For landowners in Alabama, the rule threatened to bring routine farm and development decisions under federal permitting, and the state joined other attorneys general in court to stop it.
The second was a Department of Labor overtime pay directive that would have reclassified millions of salaried workers into overtime eligibility, a change Marshall described as an administrative attempt to rewrite wage law that Congress had set. The third was a Department of Education policy on school bathroom access for transgender students, which instructed districts on how to handle facilities under federal anti-discrimination guidance. Alabama joined multistate challenges to that policy as well, arguing that the federal government had no authority to dictate those decisions to local school systems.
All three challenges succeeded in blocking the rules from taking effect. Marshall presented that record as evidence that the litigation strategy works: when federal agencies move beyond the authority Congress gave them, state attorneys general acting together can stop the rules before they take hold, without waiting for a sympathetic president or a new Congress to unwind them.
The Same Tool, Both Directions
Marshall said the dynamic has since flipped under President Donald Trump, with attorneys general in more liberal states now suing to block administration policies. The same states that defended federal regulatory power during the Obama years have become the plaintiffs challenging federal action, and the Republican attorneys general who spent eight years filing those suits now find themselves on the defense. He argued his own approach has remained consistent regardless of which party controls the White House.
“Even when we have friends in Washington, litigation and threats of litigation can be useful to call something to a stop,” he said, making the point that the office’s job is not to support a president but to defend the legal interests of Alabama and to police the boundaries of federal power. In his view, the willingness to sue an administration of the same party is what keeps the tool credible. An attorney general who litigates only against the other party is practicing politics; one who is prepared to check federal overreach no matter its source is doing the job the office requires.
That consistency, he suggested, is also what makes the current era different from the partisan battles of the past. The lawsuits now move in both directions: Democratic attorneys general challenge immigration enforcement, environmental deregulation and federal spending decisions, while Republican attorneys general challenge mandates, executive orders and rules they consider beyond statutory authority. The result is a permanent, institutionalized contest between the states and the federal government that no single election settles.
Confederate Monuments and the Monument Protection Law
Beyond the general framework, Marshall also addressed Alabama’s law protecting Confederate monuments, a subject that has put the state’s attorney general’s office at the center of one of the region’s most visible legal and political disputes. The Alabama Memorial Preservation Act, passed in 2017, bars state and local governments from removing, relocating or altering monuments more than 40 years old and imposes penalties on municipalities that do so anyway. The law has drawn litigation and widespread criticism from cities that argue it strips them of control over their own public spaces, including Mobile, where city leaders have openly clashed with the state over monuments in municipal parks.
Marshall’s appearance before the Federalist Society chapter came amid that ongoing tension, and his remarks tied the monuments issue to his broader theme: the division of power between state government and local government, and the role of the courts in sorting it out. Supporters of the preservation law view it as a legitimate exercise of state authority over historic memory; opponents view it as an unconstitutional intrusion on municipal home rule and, in some cases, as an obstacle to communities trying to address painful history. The legal fight over the statute has become a test of how far state control over local monuments extends, and the attorney general’s office has been the state’s defender in that contest.
Why the Audience Was Listening
The Federalist Society chapter audience had particular reason to pay attention to the structural argument at the heart of Marshall’s speech. The organization’s membership tends to view questions of federalism — the constitutional division between national and state power — as among the most important in American law, and Marshall’s account of the last twenty-five years of state litigation is essentially a story about federalism operating in practice. Rather than relying on Congress to check the executive branch, or on the president to restrain the agencies, the states have built their own check through the courts.
That arrangement has consequences for ordinary Alabamians. The rules blocked by the multistate suits Marshall described — the waters rule, the overtime directive, the school facilities policy — would each have changed daily life in the state, from how a farmer treats a drainage ditch to how a school district handles its buildings. The lawsuits were conducted in courtrooms far from Montgomery, but their outcomes landed on farms, payrolls and campuses across Alabama. In Marshall’s framing, that is exactly why the office matters: it is the state’s first line of defense when Washington acts beyond its authority.
A Model Likely to Persist
Marshall’s message to the Mobile audience was that the era of the assertive state attorney general is not a passing phase but a permanent feature of American government. The tobacco settlement proved the office could regulate; Massachusetts v. EPA proved states could force federal agencies to act; the Obama-era suits proved coalitions of states could block federal rules; and the Trump-era suits by opposing states proved the tool is now used by everyone. Whichever party holds the White House, dozens of state legal offices stand ready to test federal action in court.
For Alabama, that means the attorney general’s office will remain a major player in national litigation regardless of election results, and the state will continue to appear as either plaintiff or defendant in some of the country’s most consequential cases. Marshall’s speech offered the chapter’s members a first-hand account of how that transformation happened, delivered by an officeholder who has practiced it from the center of the fight. For the lawyers and students in the room, it was a close-up view of how the modern balance of state and federal power is being written — not primarily in Congress, but in the dockets of the federal courts by the states themselves.