AUSTIN — After securing a third term, Texas Attorney General Ken Paxton plans to continue his relentless legal assault on President Joe Biden’s agenda that has previously stymied Democrats’ approach to immigration and care health.
In Texas, judges ruled in favor of Paxton to block federal COVID-19 vaccination mandates in Head Start programs, suspend LGBT anti-discrimination protections and suspend guidelines for who to deport.
Their orders often suspend Biden’s policies while cases are in dispute, and those delays can stall Democrats’ agendas for months.
“It uses, right now, what is the red state veto over Biden,” said Wendy Parmet, director of the Center for Health Policy and Law at Northeastern University. “It’s kind of got to the point where I think the Biden administration thinks they can’t sneeze without being sued by Texas.”
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Paxton’s lawsuits had one of the biggest impacts on immigration rules.
“At the moment, it seems like Paxton is as important as the (federal government) in deciding what immigration policy is going on these days,” said Stephen Yale-Loehr, professor of immigration law at Cornell Law School.
Paxton’s office did not respond to multiple requests for comment, including emailed questions about how his office decides which Biden policies to challenge in court.
The Collin County Republican is part of a long tradition of attorneys general suing administrations of opposing political parties. But legal experts say lawsuits are coming faster and having greater effects now that judges are more willing to enforce their orders nationwide.
Adding to the changing legal landscape is former President Donald Trump’s mark on the federal bench.
Of the 20 lawsuits Paxton filed against the Biden administration in Texas, records show that all but three went to U.S. district judges Trump appointed to the bench. Critics accuse the attorney general of “judge shopping,” deliberately filing a lawsuit in district court divisions where he is almost certain to appear before a Trump appointee.
“It’s one thing to win cases in front of randomly appointed judges, it’s another to choose the judge and then declare victory,” said Steve Vladeck, a law professor at the University of Texas, who has filed briefs with the U.S. Supreme Court opposing the state’s decision. Shares.
Paxton played his assumed role as the chief antagonist of Biden’s courthouse. On election night in Plano, he predicted more litigation to come as a newly divided Congress could push Biden for more executive action.
“I have a feeling we’re going to be very busy,” Paxton said. “I can guarantee you that we will be on the front line to observe what they are doing, preventing them from overdoing it.”
No more lawsuits
As the best attorney in the state, he has broad discretion in determining how to mobilize attorneys and office resources.
In some ways, Paxton takes over from his predecessor, Gov. Greg Abbott, who as attorney general often bragged about fighting the administration of former President Barack Obama. Abbott described the job this way: “I go to the office, sue the feds and go home.”
Since Paxton took office in 2015, lawsuits against the federal government by state attorneys general across the country have only resumed, said Paul Nolette, a political science professor at Marquette University who makes research on attorneys general.
Trump has faced more than twice as many as his two predecessors, most of them filed by Democrats, Nolette said. While Republican attorneys general aren’t prosecuting Biden at the same pace, it’s still at a much faster pace than under the Obama and Bush administrations, he said.
Trump has also reshaped the legal system in Texas. During his single term, he appointed 18 judges to U.S. district courts across the state and appointed judges who pushed the region’s already conservative appellate court further to the right.
“Always sting this administration”
Most of Paxton’s cases end up before these judges, which critics say is intentional.
When challenging Biden over immigration, for example, Paxton’s office strayed from the border and instead brought most of the lawsuits to Amarillo and Victoria, where Trump-appointed judges were assigned to adjudicate. hear all or nearly all newly filed cases, according to Vladeck’s research and a review of agency court records.
Those justices ruled in favor of Paxton in ending Biden’s policies that included a 100-day deportation freeze and guidelines around which federal immigration authorities should arrest and deport, a case that is now before the Supreme Court. the United States.
“None of the lawsuits filed by Texas against the Biden administration were filed in Austin,” Vladeck said. “If the Attorney General is so confident in the strength of his legal arguments, why isn’t he filing a case in his own backyard?”
At a panel last year, Paxton’s top deputies outlined a legal strategy that involves attorneys general across the country launching similar lawsuits on all fronts, instead of working together on a single case filed in court. one court.
“We always want to take a case to the 5th Circuit, we always want to take a case to specific circuits that we think are going to rule us,” First Assistant Attorney General Brent Webster said in recorded remarks from a panel. conservative lawyers. , adding that a case in the historically liberal West Coast Court of Appeals may not be bad.
“An adverse ruling in the 9th Circuit that’s crazy actually benefits us in the Supreme Court,” he said. “We pushed the boundaries of our office a lot to always file a case, always push this administration and still file good cases.”
In the same panel, Deputy Attorney General for Legal Strategy Aaron Reitz said, “Judges won’t save America. But it’s better to have Republican-appointed judges than Democratic-appointed judges. »
Paxton’s biggest target has been Biden’s immigration policies. But he also challenged the administration’s COVID-19 vaccine mandates, abortion guidelines and LGBT anti-discrimination rules.
In many cases, U.S. District Judges in Texas ruled in favor of Paxton to stop policies before they were even enacted.
U.S. District Court Judge Matthew Kacsmaryk, a Trump appointee who from September presided over all new cases brought to Amarillo, recently blocked Biden from enforcing workplace protections for gay workers and transgender. While the policies are pending, the federal government has yet to appeal.
Another Lubbock-based Trump appointee, U.S. District Court Judge James Wesley Hendrix, temporarily halted mask and vaccine mandates in Head Start programs in Texas and also suspended enforcement of federal guidelines that would require state hospitals to provide abortions as emergency care.
Even if a decision doesn’t hold up on appeal, the time in between can hamper Biden’s ability to quickly achieve his goals.
In August 2021, Kacsmaryk ruled in favor of Paxton when he ordered Biden to reinstate a Trump-era policy requiring asylum seekers to wait in Mexico until their hearings. The U.S. Supreme Court later ruled that Biden could end the controversial “stay in Mexico” policy, but by then nearly a year had passed.
“Each lawsuit seems to result in a temporary injunction prohibiting the Biden administration from changing immigration policy,” Yale-Loehr said.
Nolette expects a number of factors to lead to increased litigation over the next few years, including political maneuvering ahead of the 2024 presidential election and a list of new agency rules the Biden administration is expected to finalize in the coming months. Faced with the newly divided political control of Congress, Nolette said Biden could also be pressured to issue more executive orders, which are generally more legally vulnerable.
“You’re going to have legal action against AG,” he said. “I wouldn’t be surprised to see the next two years be even more active than the first two years of the Biden administration when it comes to these GA lawsuits.”
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