Texas has called itself an aggressive and litigious arm of the Republican Party for years – a right-wing David against the Democratic Goliath.
So when Democrat Joe Biden took over the Oval Office in January, the state’s conservative leaders were already looking forward to a devastating fight.
“I promise my Texan and American colleagues that I will fight the many unconstitutional and illegal actions that the new government will take, challenge the federal excesses that infringe on the rights of Texans and serve as a major control against the government’s illegality,” said the state. attorney general, Ken Paxton, tweeted on the day of Biden’s inauguration.
Just two days later, Texas opened the first major lawsuit against the Biden administration, successfully blocking a 100-day deportation moratorium that the governor, Greg Abbott, censored as a “attempt to grant general amnesty”For immigrants.
Far from being a unique outburst of hostility, that incendiary case marked a return to the tried and tested book of Texas politicians using weapons in the courts to derail progressive policies, a tactic that has proved surprisingly potent in the midst of ideological war with the feds.
“They have been successful in, like, causing uncertainty,” said Katie Keith, associate professor of research at the Center for Health Insurance Reforms at Georgetown University. “And messing up things that I think other people think is resolved in another way.”
The state leadership relied heavily on the judiciary under the administration of Barack Obama, who has sued at least 48 times, reported the Texas Tribune, addressing issues as diverse and wide ranging as immigration, environmental regulations and voting rights.
Then, after last year’s presidential election, Paxton even challenged 20 million votes in Georgia, Michigan, Pennsylvania and Wisconsin in a far-fetched attempt to overthrow Donald Trump’s defeat. And now, Texas is leading yet another existential threat to the Affordable Care Act in the supreme court, even as Biden urges judges to preserve Obama’s health care law.
Because of the high risks, these cases often attract national attention, and the ambitious current and former Texas Attorneys General have shown a willingness to negotiate resources and time for newspaper quotes and TV interviews. Court battles give key players like Paxton a platform “to demonstrate that they are fighters and are looking out for their constituents,” said Keith E Whittington, a professor of politics at Princeton University.
“These types of processes have become highly visible events” and allow those involved “to present themselves and send a political message to constituents about all the hard work you are doing to oppose the government that they do not like,” said Whittington.
Texas judicial activism is part of a broader party strategy that has been going on for years. Politicians undo or delay federal policies that they consider unfavorable or exaggerated, while strategically framing the narrative in the press.
“They are good opportunities to really try to influence the message about how specific policies or laws are understood and what are the potential problems with them,” said Whittington.
Both Republicans and Democrats play the game: when Trump occupied the Oval Office, blue fortresses like California rushed to the courts as a first line of defense against federal decisions that jeopardized their more liberal agendas. Now that Biden is the commander in chief, Republicans are naturally starting to do the same, with Texas apparently leading the charge.
“If the goal is to win, then it certainly affects the type of cases you present, what kinds of legal arguments you can make, how carefully you should prepare for them,” said Whittington.
“If the goal is to get the media’s attention and score political points – and to excite voters and donors – you don’t necessarily have to win. You just need to be able to highlight the problem and get the audience’s attention. And sometimes you can do that with very bad legal arguments. “
Texas has earned a reputation for its casual relationship with sound legal judgments, with cases ranging from potentially successful to totally false. When, for example, Paxton tried to overturn the results of the 2020 elections in the supreme court, a legion of lawyers and former elected officials came together to condemn his “unprecedented argument” that made “a parody of federalism and separation of powers”.
“The case … was clearly without merit and it is difficult to understand why anyone in the attorney general’s office would have thought otherwise,” said Lisa Marshall Manheim, associate professor at the University of Washington School of Law.
Nicholas Bagley, a law professor at the University of Michigan, similarly ridiculed the state’s challenge to the ACA, calling it “galacticly stupid” in an interview with the Texas Tribune.
But instead of slapping Texas and others, federal courts have almost encouraged them by issuing injunctions across the country that undermine entire policies, as long as the cases remain tied. This stagnation strategy can sometimes give state governments a real victory, even if they eventually lose.
“There is a world in which all of these specious arguments, everything in between, can really be discouraged by the courts,” said Keith. This is definitely not happening in Texas, where she described the bench as “extraordinarily conservative and ideological”, allowing “these processes to go beyond what most of us think they should”.
It is one thing to “shop on the forum”, to look for courts that may be more receptive to your case. Paxton, however, can apparently “judge the store”. Between 2015 and 2018, nearly half of Texas’s lawsuits against the federal government in district courts ended up in Judge Reed O’Connor’s court, the Texas Tribune reported. A conservative favorite aligned with Texas Republican Senator John Cornyn, O’Connor delivered the state’s victory after the victory – including overthrowing the ACA.
“The law is still standing, but it was hurt and beaten, right?” Said Keith. So, “why wouldn’t they use a similar manual for other issues?”
Because of the implications across the country, millions of Americans are watching these processes unfold – not to witness a heated dispute between two parties, but to eagerly await a referendum on their future.
“They are people’s real rights and real livelihoods and just lived realities that are sort of in the balance,” said Keith. “It’s kind of frustrating to watch these cycles in and out, because you know they affect real people.”