Texas Attorney General Ken Paxton says that Democrats are abusing the strategy that some Republican officeholders used to restrain the Obama administration.
Texas filed 48 lawsuits against the Obama administration from 2009 to 2016 on issues ranging from immigration to the environment and healthcare. Paxton filed 17 suits against the federal government since taking office in 2015—an increase from the 31 filed by his predecessor, Gov. Greg Abbott.
Paxton has filed five additional suits against the federal government since President Trump took office in January and has a major suit pending against the Department of Energy led by Rick Perry.
Paxton disputes that the suits filed by Democratic attorneys general are on par with those filed by Texas during the Obama years. The goal of the lawsuits in the Obama era, he says, was to overturn policies that overstepped executive authority.
"Obama himself said 22 times that he didn't have the authority to make immigration reform happen with the stroke of his pen, but that didn't stop him from doing it," Paxton says. The Democrats have succeeded at blocking Trump from acting within the discretion of the president to control the border because liberal judges are overstepping their authority, he argues. He considers many of the suits filed against the Trump administration to be a misuse of judicial authority.
"We challenged an administration based on the fact that it was not following laws that we had on the book. Democrats are turning to the judiciary to change laws they don't like and find new constitutional rights for non-citizens," Paxton says. "We weren't asking the court to change statutes. We were asking the court to enforce them."
Paxton insists that he is not a litigious man, but the federal government's habit of using "wide discretion" to bolster regulations and encroach on the rights of states and citizens forces his hand. "If they just stayed in their lanes, we'd be all good," he says.
Republican attorneys general successfully fought back against some of the most ambitious aspects of the Obama agenda, but some of those suits have also caused blowback for the Trump administration. Texas filed the suit that blocked President Obama's attempt to enact immigration reform without congressional or statutory support in 2015. That ruling was later cited by the federal judge that granted a nationwide injunction against Trump's executive order blocking immigration from seven predominantly Muslim nations—a suit brought by Democratic attorneys general.
"Right now Democrats are taking a page out of our playbook. They're filing suits in the most liberal circuit courts in the country to block policies they don't like," Paxton says.
He is hopeful that the federal judiciary will achieve a better balance of restraining federal authority following Trump's appointment of 10th Circuit Court of Appeals Judge Neil Gorsuch to the Supreme Court. In the past Gorsuch has been critical of Chevron deference, a Supreme Court doctrine that encourages judges preserve rules enacted by regulatory agencies when a law's text is deemed ambiguous. Paxton says such an approach would restore the power of elected officials in setting policy, rather than federal employees who are not accountable to the public or states.
"We're excited he's there. Like Scalia this is a man that reads statutes and is more textualist, following the intent of legislation, rather than being interested in rulemaking," Paxton says. "President Obama inspired us to defend the idea that there are limits on federal power. Federalism is still alive and well in Texas."