California's attorney general, Xavier Becerra, plans to keep the Trump administration tangled up in the courts.
The attorney general of California is standing at a noisy intersection on the foggy side of San Francisco, two gas stations looming behind him, fielding questions from reporters with a puckish smile.
Xavier Becerra, a longtime politician who represented downtown Los Angeles in Congress for more than two decades, has found himself in a new office at exactly the right time. As California’s top attorney, he has become the most prominent lawyer blocking the Trump administration’s rollback of environmental rules.
Things have been going surprisingly well.
In a rush to sweep away Obama-era actions that would fight climate change and support clean energy, President Trump’s efforts have been tied up by the blue states — especially California, whose lawmakers handed Becerra a pile of money to keep the administration tangled up in court.
Trump can slash fuel efficiency standards, but car makers will keep designing vehicles to the Golden State’s higher standard (because Californians buy so many cars, its standard has become a de facto national one). Trump can rail against undocumented immigrants, but California plans to keep protecting its 2 million undocumented residents. He can trash President Obama’s Clean Power Plan, but California keeps passing legislation to cut carbon emissions.
Becerra has even sued to stop construction of Trump’s signature policy objective — a Mexican border wall — saying it would violate federal and state environmental rules.
Back on the San Francisco sidewalk, Becerra is explaining why he’s trying to block the oil giant Valero from buying the last independent oil terminal in Northern California. The location he’s chosen for this press conference gives the cameras a Valero sign for a backdrop. Becerra holds up a two-headed spigot — the kind of thing usually attached to a garden hose — and cracks that smile again.
“Now, perhaps the most sophisticated way I can explain this is by using a device I found in my home,” Becerra says. It’s a strained metaphor: If petroleum corporations control the terminals, they control the spigots, giving them the power to restrict supply and drive up prices (get it?). Corny, sure, but great for television, and the cameras zoom in for a closeup.
The Valero lawsuit is a strictly local issue, but people have been looking to Becerra as an important player on the national stage — as the leader of the resistance against President Trump. The mantle of resistor-in-chief, however, does not rest comfortably on his shoulders.
In a state where Hillary Clinton won by 30 percentage points, it’s politically expedient to rage against Trump. But when Becerra engages in Trump bashing, he’s a bit stiff, as if he’s reciting pre-written quips. Mostly he sticks to one good line: “I don’t think California is looking to pick a fight,” he says, “but we are ready for it.”
As liberal California chants for Trump’s head on a stick, Becerra has remained circumspect. He has filed the lawsuits he thinks will make a difference, not necessarily the ones that would please progressives. When I ask him which cases he thinks are most important, he talks about defending light-bulb efficiency standards, an oddly wonky choice if he’s fishing for publicity. It’s not exactly an issue that fires up the base.
Becerra is taking on Trump as the nerdy scholar he’s always been, not as the warrior liberals crave.
There’s a reason to think Becerra, not liberals in Congress, might be the best hope for progressives eager to slow down Trump’s assault on environmental and other protections. Jack Pitney, professor of politics at Claremont McKenna College, says Democrats “don’t have a majority in either chamber, and Republicans aren’t rolling over for them. So the place you’re seeing actual pushback is in courts.”
This year, instead of attending exclusively to local affairs, attorneys general across the country have spent a lot of time filing lawsuits against Trump. So far, they’ve been winning. When Trump entered the Oval Office, he issued one executive order after another, aiming to undo a significant portion of President Obama’s achievements. But, as it turns out, state attorneys can stymie the White House. They can hit the brakes on presidential power.
“The first and best line of defense against the Trump administration are the Democratic attorneys general. Period. Full stop,” says Washington State Attorney General Bob Ferguson, who was the first to successfully sue Trump. “I don’t think that’s in dispute.”
These attorneys have banded together to take on Trump over health care, immigration, and much else. When asked what he’s most focused on, Becerra singled out the environment. The states are litigating dozens of lawsuits to defend Obama’s Clean Power Plan, which would reduce carbon dioxide from power plants, as well as rules governing other emissions, methane leaks at drilling sites, energy-efficiency standards for appliances, public-land coal mining, rules on water pollution — and that’s nowhere near a complete list.
The president has the power to change rules, so the best tactic for attorneys general is often delay, forcing Trump to jump through bureaucratic rulemaking hoops (a process that might take a year or more if Trump had a full staff; he doesn’t). In a couple of cases, the administration has given up entirely: The Department of Energy will stick with tighter energy standards for ceiling fans and freezers, and the EPA dropped a bid to delay arcane but consequential rules governing methane leakage.
There are also cases where no lawsuit was needed. Just before Becerra’s press conference in San Francisco, EPA Administrator Scott Pruitt announced that he had decided to let California keep higher standards for tailpipe emissions. When I ask Becerra if he had anything to do with that, he says, with a glimmer of amusement: “Oh, we made it very clear that we were going to defend everything that California has done to keep our environment as clean as possible.”
Becerra doesn’t think of himself as the leader of the country’s attorneys general. There’s plenty of work to go around. “It drains, taxes your resources, if you’re constantly the one that’s always taking the lead,” he said. “If Virginia or Washington state or New York or Massachusetts or Illinois wants to help us out, I believe in a team effort.”
Still, California has taken point in several key cases and joined dozens of others. The state already had more lawyers in the attorney general’s office than any other. Then a few months after Becerra took the job in January of this year — succeeding Kamala Harris, who has also taken up the fight against Trump as California’s newest U.S. senator — the legislature handed him an extra $6.5 million for the judicial campaign against Trump — enough to hire 19 more attorneys and 12 other staffers.
That wasn’t a tough vote for California Democrats. As soon as Trump was elected, state officials started promising to fight any attempts to roll back climate action and environmental justice initiatives. But, while other liberals are making names for themselves with anti-Trump bombast, Becerra has stayed — mostly — quiet. That has frustrated some on the left, who would like to see California follow the path set by Texas under Obama and sue on longshots, if only to galvanize the progressive base.
Progressives who have been focused on one particular case, the investigation into whether Exxon deceived shareholders on climate change, complain that California hasn’t done enough to investigate the potential fraud, while New York and Massachusetts have sued to force Exxon to turn over documents.
RL Miller, chair of the California Democratic party’s environmental caucus and a founder of the advocacy group Climate Hawks Vote, endorsed Dave Jones, the state’s insurance commissioner who is running against Becerra in November, “in large part because I’m disappointed by Becerra’s lack of a stand on Exxon,” she told me. (That’s just her personal endorsement, she stressed.)
Judith Enck, a former top EPA official who also spent eight years working for the New York attorney general, also says Becerra’s office hasn’t been aggressive enough. “Leadership seems to be coming mostly from other AGs,” she says. “Becerra seems to sign on a lot.”
Becerra tells me that although he sympathizes with the liberal hunger for resistance, he sees his role differently. “I’m getting too old to be the resistance,” he says. “I want to move forward.”
In other words, it’s not enough for Becerra to thwart Trump and maintain the status quo. He wants to help California build something better. “My job is to have the backs of those who want to see California continue to be a forward-leaning state,” he says. “I don’t do this because it’s anti-Trump, I do this because it’s pro-California.”
Of course, while progressives want Becerra to be more aggressive, conservatives think he’s already gone too far. From their perspective, Trump is simply pruning back overgrown federal laws that impinge on state’s rights. With Congress unable to agree on much of anything in recent years, the president and the courts have stretched laws to cover issues that their drafters probably never considered. Obama and the Supreme Court expanded the Clean Air Act to cover greenhouse gases and the Clean Water Act to cover streams too small for boats ferrying interstate commerce.
To John Eastman, a law professor at Chapman University and a former clerk for Supreme Court Justice Clarence Thomas, Becerra has stepped out of bounds.
“I think he’s too much joining overtly political bandwagons, rather than suing for legitimate legal reasons,” Eastman says. “It’s fine to challenge illegal conduct by the government. It’s challenging things that are perfectly legal and then shopping for a judge who will agree with you and issue a nationwide injunction that has no basis in law — that’s where I find it preposterous.”
But Pitney, the Claremont McKenna professor, thinks it’s not in Becerra’s character to pursue purely partisan cases. “When he moves forward, he’s going to make sure his lawyers are making the best possible case, with a lot of legal and factual research,” he says.
That squares with Becerra’s reputation. He’s always been methodical, not a brawler. This is a guy who ironed his short-sleeved shirts in college. A friend from Stanford remembers him as “the straightest Chicano I knew.” In fact, Becerra is so meticulous and careful that he’s a nightmare for a profile writer. “This is not an LBJ-style politician who throws off colorful anecdotes,” Pitney says.
Still, he does have a great backstory. He’s the son of Mexican immigrants (his father was born in Sacramento and grew up in Mexico) and a product of California’s public schools. He only applied to Stanford because he found the form someone had thrown away and had no idea where the school was until his mother drove him to campus.
At Stanford, friends urged him to take leadership positions in Chicano activist groups, but he wanted to study instead. One of those friends, Carolina Reyes, is now his wife.
“I was the grandiose one who wanted to conquer the world, and he did, too, but he wanted to do it step by step,” Reyes said in 2001. Later, when Latino deans of California politics urged him to run for election, he resisted again — at least initially. He had thought of himself as a cool-headed policy wonk, the trusted confidant offering sage advice. “You know, the one you always see in the movies whispering in the ear of the official, and then all of a sudden the eloquent question comes out,” Becerra told the Los Angeles Times.
More than once he’s admitted that he doesn’t have a natural talent for the game of politics. If he were more politically inclined, he might use the office of the California attorney general to stir up progressives. Rather than suing mostly over arcane rule violations, for instance, he could file moonshot cases that would make him the subject of national conversation.
You could argue that there’s a reason for stirring things up, beyond self promotion. A blue tide of liberal outrage has been inching up around the toes of vulnerable Republican incumbents across the country, but for Democrats to win a majority in the House or Senate, that tide will need to become a tsunami of voters.
On the other hand, while Becerra’s style is unlikely to win him a devoted following, it may be perfectly suited for the job of suing Trump. In court, precision beats bombast.
“Becerra will need to box, not brawl,” wrote two former officials from California’s office of the attorney general. “His goals should be attrition and delay — an endless loop of litigation and red tape.”
Becerra, and the other attorneys general, have done just that, protecting many Obama-era rules. One reason for their success stems from Trump’s rush to issue executive actions as soon as he walked into the White House. His orders came so quickly that he created dozens of openings for lawyers ready to sue over violations of process. “Generally the competence of this administration is not very high,” Pitney says. “The Trump people are sloppy and careless.”
That’s why the state attorneys general have managed to tie Trump in legal knots. When he was asked at a lunchtime talk about the biggest challenges he faced as attorney general, Becerra frowned in concentration and bobbed his head from one side to the other, his eyes searching the air above him as if looking in vain for any real challenges. Then that puckish smile crept round the corners of his mouth, and the crowd burst into laughter.
“Let’s put it this way,” he said, the lines at the corners of his eyes crinkling deeper. “I’m sitting here talking to you, there’s another attorney general in D.C. talking to some other folks. I’m having a better time than he is.”
In other words, while Trump’s attorney general, Jeff Sessions, scrambles to put out fires, Becerra hasn’t broken a sweat.
The ability to have a good time while running circles around the Trump administration isn’t exactly the key character trait of the champion progressives want. They hunger for a hero who reflects their sense of desperation in the face of a deteriorating world and failing state, someone who channels their righteous anger. This unflappable tactician isn’t the hero they want, but maybe he’s just the one they need.
Reporting for this story was supported by the Fund for Environmental Journalism of the Society of Environmental Journalists.