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Paxton carries on federal overreach fight in Texas

By   /   December 3, 2015  /   News  /   No Comments

While it took him a little while to get warmed up, Attorney General Ken Paxton is proving a worthy successor to Gov. Greg Abbott fighting federal overreach.

AP file photo

HOLD UP: Texas Attorney General Ken Paxton is fighting battles against perceived federal overreach.

Over the past several weeks, Paxton’s office has filed suits directed at two of the state’s most familiar targets, the Environmental Protection Agency and Obamacare.

Paxton has taken a lead role in a lawsuit joined by about two dozen states to block the Obama administration’s Clean Power Plan, the EPA’s gambit to change the way energy is produced and used in this country.

The cost estimates to comply with the regulations have run from the tens of billions of dollars to bringing the entire American economy to its knees.

Texas is also suing the federal government over the Affordable Care Act’s health insurance providers fee, something Paxton says is an unconstitutional tax that costs Texans $120 million a year.

Since he took office, Paxton has filed six lawsuits against the federal government, three of them against the EPA, according to data provided to Watchdog by the Attorney General’s office.

Paxton is building on the record for confrontation with federal regulatory overreach of former AG Abbott, who sued the federal government 36 times, 19 of them against the EPA during his terms in office from 2002 through 2014, according to the AG’s data.

Texas attorney general have been leaders in the fight against federal overreach.

Texas attorney general have been leaders in the fight against federal overreach.

The Texans have been leaders among Republican attorneys general, whose partisanship and activism sharply increased when Barack Obama took office in 2009.

With the growth of the regulatory state driven by polarizing policy decisions, attorneys general over the past decade have exercised and coordinated powers as never before, Paul Nolette, author of Federalism on Trial: State Attorneys General and National Policymaking in Contemporary America, told Watchdog.

“The big reason is the persistence of a divided government at the federal level,” said Nolette, a Marquette University Political Science professor. “Because the states are so tied into these policy decisions and the legal process playing such a big role in regulation politics, AGs have realized and are taking full advantage of their positions.”

There are currently 27 Republican attorneys general and 23 Democrats.

Little surprise that much of the resistance from Republican attorneys general has been directed at the EPA and Obamacare, with their thousands of pages of regulatory legalese and far reaching consequences for residents.

“The fight against EPA,” Paxton told attendees of a recent energy and climate conference in Austin organized by the Texas Public Policy Foundation, “is not just about growing the economy, protecting private property, or even saving jobs. It’s about standing up for the Constitution and the rule of law. It’s going to take us all, working together, to prevent ideologues from gutting the American dream to advance their own misguided agenda.”

Cynthia Meyer, Paxton’s spokeswoman, told Watchdog Wednesday the cost to Texas families and businesses drives specific lawsuits, particularly the EPA suits. The overriding philosophy, Meyer said, is protecting state authority in vital areas of people’s lives.

“It’s our duty to defend the rule of law against an aggressive federal government, and we are proud to join with other states to fight the EPA’s ill-conceived regulations,” she said.

Much has been made in the legacy media about the cost to taxpayers to fight so many lawsuits, more than $5 million during the Obama years. With a total annual budget for litigation, legal services and counseling of $89.4 million this year, Paxton has drawn less than 0.25 percent of it on federal suits, according to Legislative Budget Board figures. For the entire Obama era, the average annual expenditures are less than 1 percent of the total litigation budget.

These small numbers were much smaller when Abbott presided during the Bush administration. From 2002, when Abbott took office, to 2008, Texas sued the federal government just three times.

The strategy changed almost immediately after Obama’s election in November 2008. For months before Obama presented his ACA to Congress, Abbott was among the leaders of Republican attorneys general preparing a lawsuit filed just minutes after the bill passed.

Abbott was a natural for a leadership role not only because of his politics but also because the size of his budget gave him the resources in an energy-producing state that would be affected in an outsized way by fossil fuel regulations, Nolette said.  The size of the population also gave him a potent argument for how federal overreach would affect real people.

Obama’s reliance on executive order rather than congressional authority has made the fight with the AGs seem more combative and more personal. A year ago in the summer when AGs were threatening to sue over changes he wanted to make to the ACA, Obama ridiculed the effort.

“Stop being mad all the time,” Obama said to an appreciative audience. “Stop just hatin’ all the time.”

“What you’re seeing today is AGs being far more proactive, not only in the quantity of the lawsuits, but the partisanship,” Nolette said. “It’s almost gotten predictable, with the president rolling out some regulation through the FDA or the EPA followed by the lawsuits.”

Nolette said he would fully expect Paxton to carry on the work of trying to block federal overreach, particularly if a Democrat succeeds Obama. He would also fully expect Democratic attorneys general to have learned important lessons that will almost certainly be used if voters elect a Republican president.

“Whether it’s an R or a D president, I think you’re going to see much of the same kind of activism, Nolette said. “Now the cat has sort of been let out of the bag. I think you’re going to see everybody trying to reverse stuff.”


Mark Lisheron was a former Austin-based reporter for Watchdog.org.