Ken Paxton testifies in front of the Texas Senate.
Ken Paxton testifies in front of the Texas Senate.
Office of the Texas Attorney General

Texas AG Paxton's Legal Fights Are on Shifting Ground

During President Barack Obama's term in office, it was an almost weekly activity for Texas Attorney General Ken Paxton to announce his newest lawsuit against the federal government. Whether it was environmental regulations, LGBTQ rights or immigration policy, the formula was the same: Paxton picks an issue important to his conservative base, files a lawsuit or writes and amicus brief about the issue and reaps the media attention from his lawsuit.

In some cases — such as Paxton's attempt to deny Family and Medical Leave Act benefits to same-sex spouses or partners in 2015 — the attorney general's claims didn't make it very far, with the attorney general giving up on fighting what he knew was a losing battle.

In others, however, like his fights against deportation protection for undocumented immigrants and Environmental Protection Agency regulations, Paxton managed to hang on long enough to see the political climate in Washington swing in his favor.

As Donald Trump's presidency has careened through its first six months, Paxton has been forced to shift legal strategies, maintaining his fights against a less-than-hostile adversary. After a month that saw several of the attorney general's squabbles take significant twists, let's take a look at the status of Paxton's biggest legal battles.

The fight over DACA and DAPA — In 2014, President Obama signed an executive order creating the Deferred Action for Parents of Americans and Lawful Permanent Residents program, which was intended to allow some parents of U.S. citizens and green card holders to remain and work in the United States without fear of deportation. Paxton led a 26-state coalition challenging the order, claiming that it would've placed an unfair burden on the states in which those residents lived. The state of Texas won an injunction against the program, tying it up in federal court pending trial. In June, the Trump administration issued a memo ending DAPA before it ever started.

Seemingly, that should have satiated Paxton, but it didn't. Last week, the attorney general wrote a letter to U.S. Attorney General Jeff Sessions, demanding that the Trump administration also end Deferred Action for Childhood Arrivals, a program that protects undocumented immigrants brought to the U.S. as children, if it wants Texas and its coalition to drop the lawsuit. If the federal government doesn't kill DACA, Paxton says he'll simply amend his suit and keep fighting. The Trump administration hasn't responded to Paxton's letter.

Paxton's skirmish with the environment — With noted climate change skeptic Scott Pruitt in charge of the Environmental Protection Agency, Paxton is working to preserve the rights of Texas' agricultural businesses to continue to dump animal waste in bodies of water on private property. After a lengthy legal fight against the Waters of the United States rule, Paxton celebrated Pruitt's decision to repeal the regulation last week.

“This rule directly infringed on the states’ ability to regulate their own national resources and posed a burden to Texas property owners whose land would be subject to new EPA regulations,” Attorney General Paxton said. “I applaud administrator Pruitt for recognizing that the Obama-era EPA blatantly exceeded statutory authority and for promptly repealing this unlawful rule.”

Texas against the rights of same-sex married couples — Late last week, the Texas Supreme Court handed Texas' state leadership a big victory when it elected not to throw out Jack Pidgeon and Larry Hicks v. Mayor Sylvester Turner and the City of Houston, a case that challenges the rights same-sex couples have in Texas to benefits afforded to other married couples. In an amicus brief, Paxton, Texas Gov. Greg Abbott and Texas Lt. Gov. Dan Patrick argued that the Supreme Court decision legalizing gay marriage only requires states to recognize those marriage, not grant any rights with them. The case now returns to a lower Texas court for further argument. Paxton lauded the decision as a reaffirmation of Texas' restrictive marriage laws.

“I’m extremely pleased that the Texas Supreme Court recognized that Texas law is still important when it comes to marriage,” Paxton said, before quoting the Texas Supreme Court ruling. "Mr. Pidgeon and the mayor, like many other litigants throughout the country, must now assist the courts in fully exploring Obergefell’s reach and ramifications and are entitled to the opportunity to do so.”

No sanctuary for sanctuary cities — The battle over Texas' newly passed sanctuary cities law began in earnest last week, with lawyers from Paxton's office arguing that Texas' law — which includes provisions allowing the state to remove public officials who fail to cooperate with federal immigration law — passes constitutional muster. In addition to battling Texas' largest cities — including Dallas, Houston, Austin and San Antonio — over immigration policy at the state level, Paxton also filed an amicus brief supporting Trump's executive order regarding sanctuary cities last month. Trump's order, currently under a federal court injunction, would restrict federal funding to cities and municipalities that enact sanctuary policies to protect undocumented immigrants.

The AG's criminal case — Each of Paxton's major battles occurs against the backdrop of his ongoing criminal case for securities fraud. Originally slated to begin in May and then pushed back to September, Paxton's case is now in limbo after his defense team successfully petitioned for it to be assigned to a new judge last month. Harris County District Judge Robert Johnson, a Democrat who successfully unseated Patrick's son in 2016, will preside over Paxton's case, which was moved from Paxton's home in Collin County earlier this year. The next hearing in the case is set for July 27.

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