Texas has for years described itself as an aggressive and litigious arm of the Republican Party – a judge David against the Democratic Goliath.
When Democrat Joe Biden took over the Oval Office in January, the state’s conservative leaders were already getting an exhausting, fighting.
“I promise my fellow Texans and Americans that I will fight against the many unconstitutional and illegal actions that the new government will take, challenge the federal force that violates the rights of Texans, and serve as an important control against lawlessness of the government, ‘says the state. Attorney General Ken Paxton, tweeted on Biden’s inauguration day.
Just two days later, Texas filed the first major lawsuit against Biden’s administration, successfully blocking a 100-day deportation moratorium imposed on Gov. Greg Abbott as aseeks to grant amnesty for blanketsTo immigrants.
The infectious case, far from a one-time outburst of hostility, was a return to Texas’ tried and true playbook to arm the courts to derail progressive policies, a tactic surprisingly powerful amid ideological warfare with the federal .
“They have achieved success, such as causing uncertainty,” said Katie Keith, associate professor at the Center for Health Insurance Reform at Georgetown University. “And to make a mess of things I think other people think differently.”
The state leadership has relied heavily on the judiciary under the administration of Barack Obama, which has sued them at least 48 times, the Texas Tribune reported, tackling issues as diverse and comprehensive as immigration, environmental regulations and voting rights.
In the aftermath of last year’s presidential election, Paxton has gone so far as to challenge 20 million votes in Georgia, Michigan, Pennsylvania and Wisconsin in a far-reaching attempt to overthrow Donald Trump’s defeat. And right now, Texas is at the forefront of another existential threat to the Affordable Care Act in the Supreme Court, even as Biden urges the judges to preserve Obama’s signature health care law.
Because of the high stakes, these cases often attract national attention, and Texas’ ambitious current and former attorney general has shown willingness to swap resources and time for newspaper quotes and TV interviews. The court battles give key players like Paxton ‘a platform’ to show they are fighters and looking for their constituents’, says Keith E Whittington, a professor of politics at Princeton University.
“These kinds of lawsuits have become very well-known events” and allow those involved to ‘send tribunes and send a political message to voters about all the hard work you are doing to resist the government they do not like’ , Whittington said. .
Texas’ judicial activism is part of a larger biased gambit that has been going on for years. Politicians undo or delay federal policies that they find unfavorable or excessive, while strategically defining the story in the press.
“These are great opportunities to really influence the messages about how specific policies or specific laws are understood, and what the potential problems are with them,” Whittington said.
Both Republicans and Democrats are playing 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 commander-in-chief, Republicans are obviously starting to do the same, with Texas apparently leading the way.
“If the goal is to win, it definitely affects the kind of case you bring, what kind of legal arguments you can make, how carefully you have to prepare for it,” Whittington said.
‘If the goal is rather to attract media attention and gain political points – and excite voters and donors, you do not necessarily have to win. You just have to be more discriminating with the help you render toward other people. And sometimes you can get it with pretty bad legal arguments. ”
Texas has gained a reputation for its comfortable relationship as a good legal verdict, with cases ranging from potentially successful to outright false. When Paxton, for example, tried to overturn the 2020 election results in the Supreme Court, a legion of lawyers and former elected officials banded together to reject his ‘unprecedented argument’ that made ‘a mockery of federalism and separation of powers’.
“The case … was clearly without merit, and it’s hard to understand why anyone in the Attorney General’s office would think otherwise,” said Lisa Marshall Manheim, associate professor at the University of Washington’s School of Law. .
Nicholas Bagley, a law professor at the University of Michigan, also mocked the state’s challenge to the ACA, calling it ‘galactically stupid’ in an interview with the Texas Tribune.
But instead of slapping Texas and others on the wrist, federal courts have almost encouraged them by issuing nationwide orders that hamper the entire policy, as long as the cases remain captured. That halting strategy can sometimes give state governments a de facto victory, even if they end up losing.
“There is a world in which all the particular arguments, all the others, can really be discouraged by the courts,” Keith said. This is certainly not happening in Texas, where she described the bank as’ extremely conservative and ideological ‘, and’ allowed ‘these lawsuits to go beyond what most of us think they should do’.
It’s one thing to look for ‘forum stores’ to find courts that are more susceptible to your case. However, Paxton can apparently ‘shop shop’. Between 2015 and 2018, nearly half of Texas’ lawsuits against the federal government end up in district courts in Judge Reed O’Connor’s courtroom, the Texas Tribune reported. O’Connor, a Conservative favorite in line with Texas Republican Senator John Cornyn, handed over the state victory after the victory – including the failure of the ACA.
“The law still stands, but it’s bruised and bruised, doesn’t it?” Keith said. So “why wouldn’t they use similar playbooks for other editions?”
Because of the implications nationwide, millions of Americans are watching these lawsuits – not to witness a bitter battle between two parties, but to anxiously await a referendum on their future.
“It’s people’s real and real livelihoods and just real life truths that hang in the balance,” Keith said. “It’s frustrating to watch these cycles go in and out, because you know it’s real people. ‘