Two days after the November election, Missouri Attorney General Andrew Bailey touted a court victory against a federal immigration rule to aid migrants married to U.S. citizens, a decision that came in a lawsuit filed by Bailey, Kansas Attorney General Kris Kobach and 13 other Republican states.

President Joe Biden and Vice President Kamala Harris had “created a crisis” at the southern border, Bailey said. The rule was an example of the Biden administration “inventing an unlawful program out of thin air,” Kobach added.

But Bailey and Kobach won’t have the Biden administration around to attack much longer.

After spending years suing Biden and federal agencies under his control, the Republican attorneys general of Missouri and Kansas will enter a new era on Jan. 20, 2025, when President-elect Donald Trump takes office. The two state officials are almost certain to abandon their adversarial posture in favor of a supporting, even cheerleading, role.

As Bailey and Kobach reposition themselves as allies of the new administration, they may turn their legal firepower elsewhere. Democratic-leaning localities are likely to find themselves further scrutinized if they take action that upsets Republicans, predict experts who have watched how state attorneys general offices operate.

The coming federal transfer of power marks the first time Bailey and Kobach have been state attorneys general while their party controlled the White House. Both men took office in January 2023; Kobach after winning election and Bailey after Missouri Gov. Mike Parson chose him to fill a vacancy.

Both officials have forged ties to Trump. During the first Trump administration, Kobach co-led a White House commission that tried unsuccessfully to locate voter fraud while Bailey was reportedly on the short list recently for U.S. attorney general before Trump selected former Florida congressman Matt Gaetz and, later, former Florida Attorney General Pam Bondi.

Even as Kobach has kept a lower profile compared to Bailey, both officials have sued the Biden administration repeatedly over the past two years. They have led lawsuits, as well as signed onto legal challenges with other Republican state attorneys general.

Key court battles included alleging the Biden administration violated the First Amendment by urging social media companies to take down posts and ban social media accounts, a case the U.S. Supreme Court tossed, and successfully challenging Biden’s efforts to forgive student loan debt.

Once Trump takes office, the flood of litigation is expected to dry up or at least slow to a trickle.

“I think Andrew will do what needs to be done. I just think it’s much less likely to need to be done with Trump in the White House than it would be with Biden in the White House,” said Missouri state Sen. Mike Cierpiot, a Lee’s Summit Republican.

More and more lawsuits

While state attorneys general have traditionally been associated with law enforcement and consumer protection, politically-charged lawsuits seeking to block federal rules and programs have taken on an increasingly central role in recent decades.

Immigration rules, environmental regulations and protections for LGBTQ individuals have all been at the center of legal fights between state attorneys general and the federal government.

The number of multi-state lawsuits against the federal administration has exploded over the past eight years, according to a database maintained by Paul Nolette, a professor who has studied state attorneys general and is the director of Marquette University’s Les Aspin Center for Government.

The Trump administration faced 160 lawsuits and the Biden administration faced 137. The Obama administration over two terms was only sued 80 times. President George W. Bush’s administration also experienced a similarly meager 76 lawsuits.

Despite the overall growth in litigation, the database shows just how sharply Kansas and Missouri’s approach shifted depending on which party controlled the White House.

Kansas participated as a plaintiff in 43 lawsuits against the Biden administration, while Missouri participated in 56, according to the database. Danedri Herbert, a spokesperson for Kobach, said the Kansas Attorney General’s Office was on more than 29 cases and is leading or co-leading nine cases. A Bailey spokesperson didn’t respond to questions for this story.

By contrast, Kansas and Missouri were plaintiffs in just two lawsuits total against the Trump administration, according to the database. One of those lawsuits was an attack on the Affordable Care Act, President Barack Obama’s signature health care law.

“The lion’s share of this activity is going to be coming from Democratic AG’s against the Trump administration,” Nolette said in an interview, previewing the next four years.

Still, some Republican attorneys general – potentially including Kobach and Bailey – may file fresh lawsuits in the first few weeks of the Trump administration, Nolette said. Those challenges will be aimed at overturning rules and regulations put in place by the Biden administration.

Asked whether Kobach anticipates many of the current cases will become moot in the coming months, Herbert said it’s unclear. For instance, Kobach is fighting Title IX regulations advanced by the Biden administration to provide protections to transgender students.

“President Trump has said he will end Biden’s changes to Title IX on day one,” Herbert wrote in an email. “We’ll continue litigating until the Trump administration publishes a proposed Title IX rule that rescinds Biden’s Title IX rule.”

Bailey and Kobach are both already attempting to restrict access to medication abortion, the most commonly-used form of abortion nationally, through a federal lawsuit. The U.S. Supreme Court in June ruled that a group of doctors didn’t have standing to challenge FDA approval of mifepristone, a common abortion drug.

The state attorneys general are now attempting to prohibit mifepristone’s use after seven weeks of pregnancy instead of 10 and require three in-person doctor visits. The request would reinstate requirements that were in effect before the U.S. Food and Drug Administration relaxed them in 2016 and 2021.

While the Biden administration fought the previous lawsuit, it’s unclear what position the Trump administration will take in response to the new complaint.

In some instances, courts offer a faster path to tossing out rules than going through the formal federal rule-writing process, Nolette said. If state attorneys general receive a favorable court ruling, the Trump administration can simply decline to defend the challenged rule.

But those “friendly” challenges will still only represent a small fraction of the litigation that a Harris administration would have faced. Instead, Nolette and others expect Republican state attorneys general to pay more attention to actions by local governments.

Focus on local officials

Bailey, in particular, has been willing to take local officials to court – or at the very least publicly fight them.

“We’ve seen a lot of battles, both with Bailey and before, between localities and the state,” Nolette said. “I think Missouri may be only second to Texas in terms of the sheer quantity of those sorts of challenges.”

In April, Bailey accused Kansas City Mayor Quinton Lucas of offering an “open invitation for illegal aliens to come to Missouri” after Lucas on social media linked to an article in which he said that the Kansas City economy would benefit from workers seeking asylum or other legal status in the U.S. but who are stuck in crowded shelters in cities such as New York awaiting work permits or other documentation.

Lucas also emphasized that he was talking about “persons who are lawfully present, with lawful work permits, and the lawful ability to come to our community.”

Bailey issued a vague legal threat in a letter to Lucas, arguing that his previous comments regarding Kansas City welcoming migrant workers were “wildly irresponsible.” The Missouri attorney general ultimately took no further action against Lucas, but the attacks generated days of headlines.

More recently, Bailey promised to sue Jackson County over a new ordinance that restricts the possession and purchase of guns by individuals 21 and younger. The ordinance, which the Jackson County Legislature enacted over the veto of County Executive Frank White, marked the culmination of an effort to pass local gun-related restrictions following the Chiefs Super Bowl rally shooting in February.

“The right to keep and bear arms is inalienable,” Bailey said in a statement. “To that end, I will be filing suit against Jackson County for their illegal attempt to violate Missourians’ Second Amendment rights.”

Jackson County Legislator Manny Abarca said in a statement that he was glad the issue had Bailey’s attention, saying that “as for his tenure thus far, he has gotten to avoid the countless juvenile victims and perpetrators of gun violence.”

Cierpiot cited the new ordinance as an example of the kind of action Bailey will take in the coming years.

“I think Andrew would push back wherever it needs to be pushed back. But the way things are playing out, it’s going to be much more likely to be local than it is going to be federal,” Cierpiot said.

In Kansas, Kobach was a vocal critic of illegal immigration long before becoming state attorney general. Michael Smith, a political science professor at Emporia State University who has studied Kobach, said he expects him to fight any efforts by municipalities to adopt “sanctuary city” policies.

“What I would guess with Kobach is, he will work to raise his national profile, that he will continue to be very much a conservative activist,” Smith said. “He may go ahead and put immigration back on the agenda, maybe get the states involved in deportations in some way.”

Kobach’s ‘litigation unit’

Kobach campaigned on setting up an operation inside the Kansas Attorney General’s Office to sue the Biden administration.

After he took office, Kobach established a “special litigation unit” that its website says is dedicated to protecting the constitutional rights of Kansans.

Kansas state Rep. Susan Humphries, a Wichita Republican who chairs the House Judiciary Committee, said Kobach’s legal battles with the federal government over the past two years had been a good use of state resources. The cases the state attorney general weighed in on had a direct impact on Kansas, she said.

“So I don’t feel like it’s been just ‘toss it up to the wind and see what happens,’” Humphries said. “I feel like it has a purpose.”

But Trump’s victory is raising questions about the future of the unit.

A special committee of the Kansas Legislature is exploring the creation of a “regulatory sandbox” program designed to entice businesses to test new products and services without initially coming under full regulatory scrutiny. During a committee meeting in November, lawmakers discussed what role the Kansas Attorney General’s Office would potentially play.

Robert Hutchison, deputy attorney general for the office’s civil division, told lawmakers the Kansas Attorney General’s Office would prefer not to administer the program. Given staffing within the office, the responsibilities would be a burden, he indicated.

Herbert, the Kobach spokesperson, told The Star that three attorneys are currently assigned to the office. She didn’t answer a question about whether their roles would change after Trump takes office but noted that they “also work on other high-profile cases,” such as defending a Kansas law that defines man and woman based upon sex assigned at birth.

Kansas state Rep. John Carmichael, a Wichita Democrat, asked Hutchison about the office’s workload.

“I can assure you all of our attorneys are occupied very much full-time with what they’re doing,” Hutchison responded.

Carmichael replied that “the attorney general files a lot of litigation against the Biden administration.” Left unsaid was that Biden will soon be out of office.

In an interview, Carmichael said he expects Kobach to retain the lawyers within the litigation unit but that they will be redirected to “something political in nature.”

“People need to keep an eye on Kris because I think he’s prone to do these sorts of things,” Carmichael said, “particularly if there’s a TV camera nearby.”

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