Texas Attorney General: Under Trump, Congress can reclaim its legislative authority


Republican Attorneys General Association (RAGA) Vice-Chairman and Texas Attorney General, Ken Paxton, has been a consistent and stalwart defender of federalism and the rule of law.

During the Obama years, Republican attorneys general were the last line of defense and they worked diligently to hold the line against a president who constantly circumvented Congress. Now, as The Daily Signal reported last week, Democrats are suing the Trump administration. But, there are fundamental differences. For one, Democrats are suing at a record clip, because they are fueled by their extreme, partisan ideology.

General Paxton, in a USA Today op-ed, addresses that fundamental difference, Texas’ central role in checking the administrative state and the path ahead.

Texas Attorney General Ken Paxton op-ed in the USA Today:

During his presidency, President Obama showed little regard for the rule of law, the constitutional principle of federalism, and the separation of powers. In addition to unconstitutional executive orders he issued, his administration used unelected, unaccountable Washington bureaucrats to issue regulations that micromanaged everything from the economy to education. These regulations imposed enormous costs on the American economy and bypassed the lawmaking authority vested in Congress.

The result was predictable: An invasive federal Leviathan made ever more incursions into the policy-making domain of states. As federalism gradually eroded, so did the freedom of American citizens. 

Fortunately, Texas developed a model that helped states weather the storm until relief arrived — in the form of President Donald Trump.

State legal challenges against the federal government are nothing new, but Texas enjoyed success by constructing the template for multi-state coalitions of attorneys general suing and overturning federal policies that overstepped executive authority violating the rule of law and the principles of federalism and the separation of powers.

In 2014, President Obama created the Deferred Action for Parents of Americans, or DAPA, program. It conferred lawful presence and work authorization on millions of illegal immigrants with the stroke of a pen. Texas successfully led an unprecedented coalition of 26 states all the way up to the Supreme Court in challenging his action, which was not only brazenly unconstitutional but also quite costly. Likewise, following the threat of legal action from another Texas-led coalition of states, Trump agreed to phase out the legally similar Deferred Action for Childhood Arrivals, or DACA, this past September.

Using this model, we successfully challenged numerous other end-runs around Congress as well. The illegal and draconian Environmental Protection Agency’s Clean Power Plan, its Waters of the U.S. regulations, and the Labor Department’s overtimeand persuader rules are a few more examples. Our challenges have made it to the Supreme Court six times. In short, the template designed and executed by Texas largely held the line against the Obama administration’s executive power grabs.

I’m often asked why Texas has sued the Trump administration less than the Obama administration. The reason is legal, not partisan: Trump is following the law, not breaking it; he is executing the laws, not writing them; he is respecting the rule of law and the principles of federalism and the separation of powers, not flouting them. He is honoring the Constitution, not disregarding it.

He has taken unprecedented steps to roll back the administrative state by repealing burdensome and illegal rules. He is setting about strengthening the checks and balances that protect American liberties. His deference to the rule of law should be a model for future presidents.

It is useful to think of the legal action conducted by Texas and other states as a kind of rearguard action in the fight against the administrative state. It was a defensive, albeit vital, check on the horizontal power of the executive branch in relation to the legislative branch (aka the separation of powers), as well as on the vertical power of the federal government in relation to the states (aka federalism). Now that Trump is in office, his aggressive rule-cutting represents an offensive maneuver that is steadily regaining much of the territory lost under the Obama administration and prior administrations.

Taken together, these two components are an excellent start. In just over a year, businesses have gone from reading rules and regulations to posting “Help Wanted” and “Now Hiring” signs.

However, if Obama’s tenure taught us anything, we will be reluctant to let this potent weapon — the administrative state — fall unchecked into the wrong hands again. At this point, nothing prevents a future president from wielding it again to blur the lines between the branches of government and make mincemeat of the Constitution.

The next phase must be congressional action. Excellent bills exist that would restore the constitutional balance that the Framers intended. The Separation of Powers Restoration Act would prohibit courts from deferring to agency interpretations of law — which in practice affords executive agencies virtually unchecked legislative authority. It should also pass the Regulations from the Executive in Need of Scrutiny (REINS) Act, which would require congressional approval of new regulations exceeding an annual economic effect of $100 million.

These two bills alone would go a long way towards permanently subjecting the executive branch bureaucracy to the Constitution. Congress must act swiftly to capitalize on its historic opportunity to ensure that the rule of law, federalism and separation of powers can withstand the test of changing administrations.

Ken Paxton is the attorney general of Texas.