AUSTIN — Fresh off securing a third term, Texas Attorney General Ken Paxton plans to keep up his relentless legal assault on President Joe Biden’s agenda that’s already hindered the Democrat’s approach to immigration and health care.
In Texas, judges have ruled in Paxton’s favor to block federal COVID-19 vaccine mandates at Head Start programs, pause LGBT anti-discrimination protections and halt guidelines around whom to deport.
Their orders often put Biden’s policies on hold while the cases are litigated, and those delays can tie up the Democrat’s agenda for months.
“This is using, right now, what is the red state veto over Biden,” said Wendy Parmet, director of Northeastern University’s Center for Health Policy and Law.
“It’s kind of gotten to the point where I think the Biden administration feels it can’t sneeze without being sued by Texas,” she added.
Paxton’s lawsuits have had some of the biggest impact on immigration rules.
“For the time being, it seems like Paxton is as important as the [federal government] in deciding what immigration policy is implemented these days,” said Stephen Yale-Loehr, a professor of immigration law practice 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 the opposite political parties. But legal experts say the lawsuits are coming faster and have more far-reaching effects now that judges are more willing to impose their orders nationwide.
Adding to the shifting legal landscape is former President Donald Trump’s mark on the federal bench.
Of the 20 lawsuits Paxton filed against Biden’s administration from Texas, records show all but three have gone before U.S. district judges Trump named to the bench. Critics accuse the attorney general of “judge shopping,” by deliberately filing suits in district court divisions where he’s almost certain to get before a Trump appointee.
“It’s one thing to win cases before randomly assigned judges, it’s another thing to pick 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 objecting to the state’s actions.
Paxton has played up his assumed role as Biden’s chief courthouse antagonist. At an election night party in Plano, he predicted more litigation to come because a newly divided Congress may push Biden to take more executive actions.
“I have a feeling we’re going to be pretty busy,” Paxton said. “I can guarantee you we’re going to be on the front lines watching what they’re doing, stopping them from overstepping.”
As the state’s top lawyer, Paxton has broad discretion to determine how to marshal the office’s lawyers and resources.
In some ways, Paxton is picking up the baton from his predecessor, Gov. Greg Abbott, who as attorney general often bragged about fighting former President Barack Obama’s administration. Abbott described the job back then this way: “I go into the office, I sue the federal government and I go home.”
Since Paxton took over in 2015, lawsuits against the federal government by state attorneys general across the country have only picked up, said Paul Nolette, a political science professor at Marquette University who researches attorneys general.
Trump faced more than twice as many as his two predecessors, most of them filed by Democrats, Nolette said. While Republican attorneys general are not suing Biden at the same rate, it’s still at a much faster clip than during the Obama and Bush administrations, he said.
Trump has also reshaped the judiciary in Texas. During his single term, he named 18 judges to U.S. district courts in the state and appointed justices who pushed the region’s already conservative court of appeals further rightward.
‘Always poke this administration’
Most of Paxton’s cases wind up before those judges, which critics say is by design.
When challenging Biden over immigration, for example, Paxton’s office has shied away from the border and instead brought most suits in Amarillo and Victoria, where Trump-appointed judges have been assigned to hear all or almost all newly filed cases, according to Vladeck’s research and a review of court of agency records.
Those judges have ruled in Paxton’s favor by halting Biden policies that included a 100-day freeze on deportations and guidelines around whom federal immigration authorities should arrest and deport, a case which is now before the U.S. Supreme Court.
“Not one of the lawsuits Texas has filed against the Biden administration has been filed in Austin,” Vladeck said. “If the attorney general is so confident in the strength of his legal arguments, why won’t he file in his own backyard?”
On a panel last year, Paxton’s top deputies described a legal strategy that involves attorneys general across the country blitzing similar lawsuits on every front, instead of working together on a single case filed in just one court.
“We always want to bring a case in the 5th Circuit, we always want to bring a case in specific circuits that we think are going to rule our way,” First Assistant Attorney General Brent Webster said in recorded remarks from a panel of conservative lawyers, adding that a case before the historically liberal West Coast court of appeals may not be bad.
“An adverse ruling in the 9th Circuit that’s crazy is actually beneficial to us before the Supreme Court,” he said. “We have very much pushed the limits of our office to always file a case, always poke this administration and file good cases nonetheless.”
On the same panel, Deputy Attorney General for Legal Strategy Aaron Reitz said “the judges will not save America. But it’s much better to have Republican-appointed judges than Democrat-appointed judges.”
Forum and judge shopping isn’t illegal, experts said, and lawyers on both sides have used the tactic.
“Sometimes it seems unethical, but they do it,” said Carl Tobias, a law professor at the University of Richmond and an expert on federal courts. “Unless judges call them on it, there isn’t much you can do.”
Paxton’s biggest target has been Biden’s immigration policies. But he’s 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 Paxton’s favor to stop the policies before they were even implemented.
U.S. District Judge Matthew Kacsmaryk, a Trump appointee who as of September presided over all new cases brought in Amarillo, recently blocked Biden from enforcing workplace protections for gay and transgender workers. As the policies sit on hold, the federal government has yet to appeal.
A different Trump appointee based in Lubbock, U.S. District Judge James Wesley Hendrix, temporarily halted mask and vaccine mandates at Head Start programs in Texas and also paused enforcement of federal guidance that would require hospitals in the state to provide abortions as emergency care.
Even if a decision doesn’t stick on appeal, the time in between can hinder Biden’s ability to accomplish his goals quickly.
In August 2021, Kacsmaryk decided in Paxton’s favor when he ordered Biden to reinstate a Trump-era policy requiring asylum-seekers to wait in Mexico until their court hearings. The U.S. Supreme Court later ruled Biden could end the controversial “Remain in Mexico” policy, but by then, almost a year had passed.
“Every lawsuit seems to end up in a temporary injunction prohibiting the Biden administration from changing immigration policy,” Yale-Loehr said.
Nolette expects a number of factors will lead to increased litigation over the coming years, including political jockeying ahead of the 2024 presidential election and a slate of new agency rules the Biden administration is expected to finalize in the coming months. Faced with newly divided political control of Congress, Nolette said Biden may also be pushed to issue more executive orders, which are typically more legally vulnerable.
“You’re going to have AG’s just sue away,” he said. “I wouldn’t be surprised to see the next two years being even more active than the first two years of the Biden administration when it comes to these AG lawsuits.”