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Texas AG Candidates Eye Supreme Court Showdowns, Setting Up Big Legal Fights
Key Takeaways
- •Texas AG candidates aim to challenge long-standing Supreme Court rulings like *Plyler v. Doe* and *Obergefell v. Hodges*.
- •The strategy is fueled by the overturning of *Roe v. Wade* and the current conservative majority on the Supreme Court.
- •The role of the Texas Attorney General's office has shifted to highly partisan litigation, proactively pushing conservative policy through federal courts.
- •Candidates specifically target rulings on public education for undocumented students, same-sex marriage, and federal authority over interstate commerce.
- •A politicized AG's office might bypass the state legislature to advance its legal agenda, directly impacting constitutional rights and state services.
So, you know how things work with laws, right? There are these big decisions the Supreme Court makes, sometimes decades ago, and they usually stick. But here in Texas, some politicians running for Attorney General are saying they want to challenge those old rulings. We’re talking about cases that affect everything from who gets to go to public school to who can get married. It’s a pretty big deal, and it shows where our state’s legal battles are likely headed.
Think back to 1975. Texas had a law that let school districts tell undocumented kids they couldn’t get a free public education. One district in Tyler actually did it, and families ended up suing. Fast forward to 1982, and the U.S. Supreme Court, in a case called *Plyler v. Doe*, said, “Nope, Texas, that’s not allowed.” They ruled that every child, no matter their immigration status, has a right to a public education. That decision has been the law of the land for over forty years.
Now, imagine this: You’re at a candidate forum in Tyler, the very town where *Plyler v. Doe* got its start. And you hear the Republican hopefuls for Texas Attorney General talking about their plans to use the AG’s office to try and overturn that exact ruling. That’s what happened recently.
U.S. Rep. Chip Roy, one of the candidates, openly said that challenging *Plyler v. Doe* is one of his top priorities if he becomes AG. Senator Mayes Middleton, the other candidate, called it a “terrible decision” and believes it could be thrown out by today’s more conservative Supreme Court, if the right case gets to them.
This isn’t just talk for the campaign trail, either. These promises from both Roy and Middleton give us a real peek into how the next Texas Attorney General might push the office’s powers even further than the current AG, Ken Paxton. They want to go after what some conservatives see as long-standing legal wrongs.
We saw a big shift when *Roe v. Wade*, which protected abortion rights, was overturned. That really got conservative legal groups fired up. They now feel like the Supreme Court is ready to reconsider other past rulings. We’re talking about decisions that allow gay marriage, rulings that try to keep government separate from religion, and even cases that define how much power the federal government has over states.
Legal expert Steve Vladeck, a law professor at Georgetown University, pointed out that Roy and Middleton are signaling they’ll make the AG’s office even more partisan than Paxton did. Vladeck found it pretty audacious. He said, “The idea that the attorney general of any one state, even Texas, should be leading the charge in defining what the Constitution means on a nationwide basis, is, to me, the epitome of hubris.” You could say it’s a Texas-sized ambition, for sure.
Roy and Middleton are in a runoff election, so they’re both vying for this powerful position. Neither responded to requests for comment directly, but Roy didn’t hold back at the Tyler forum. He said he has a whole list of cases he’d like Texas to challenge. “We could sit here all night talking about cases that Texas ought to be challenging,” he stated. “We have to be vigilant in challenges at every single turn.”
So, what’s changed with the AG’s office? Thirty years ago, most state AGs, including Texas’, mainly dealt with things like child support or lawsuits against state agencies. It was pretty bureaucratic. That started to change in the 1990s when states joined forces to sue big tobacco companies. All of a sudden, AGs were on the front lines, shaping public policy through the courts.
At first, a lot of this legal action was bipartisan. But that changed big time during the Obama administration. Red states, with then-Texas Attorney General Greg Abbott leading the way, started suing the federal government over executive orders, especially those on the environment and immigration. They got a boost from a 2007 Supreme Court ruling that gave states a “special solicitude” to sue the feds on behalf of their people.
Then, when Trump was president, blue states started suing his administration. And when Joe Biden took office in 2021, Ken Paxton, our current AG, promised to use his full power against Biden’s agenda. Texas ended up suing the Biden administration over 100 times, on everything from abortion policy to COVID vaccines. More recently, Paxton has been suing non-profits, private companies, and even local governments over social issues.
Both Roy and Middleton have sworn they’ll keep this tradition of partisan lawsuits going. Roy even worked for Paxton a decade ago and proudly talks about his role in suing the Obama administration and trying to block the Supreme Court’s ruling on gay marriage. Middleton, a very conservative legislator, highlights his work on pro-religion and anti-LGBTQ+ bills. One of his bills is already in court, testing how far old legal rules can be pushed.
For example, last legislative session, Middleton helped pass a bill that would require public schools to hang the Ten Commandments in classrooms. A judge blocked it, pointing to a 1980 Supreme Court ruling that said such a requirement was unconstitutional. But here’s the kicker: The 5th U.S. Circuit Court of Appeals has actually allowed the law to move forward while it hears arguments against it. This means the debate is far from over.
Middleton is quite open about his goals. At that Tyler forum, he spoke about wanting to “defeat these atheist precedents that have stopped prayer in school, that have stopped children from going to Christian schools, and frankly, that have stopped what made our country great, which is our faith.” He even called the idea of separating church and state a “false doctrine.” If he gets elected AG, he’d be the one defending these types of lawsuits and maybe even looking for new legal ways to push a religious freedom agenda.
Vladeck, the law professor, isn’t so sure this Supreme Court is eager to reverse itself on all these issues, but he admits things can change fast. His bigger point remains: Why would a state AG think they’re in charge of leading a national charge on this? AGs are supposed to enforce state law, not reinterpret the federal Constitution. That’s a job for the Supreme Court.
Roy has been even more direct about wanting to overturn long-standing precedent. He’s talked about *Wickard v. Filburn*, a Depression-era case that gave the federal government a lot of power over any commerce that might cross state lines. Some conservative legal groups, like the Texas Public Policy Foundation (where Roy used to work), argue that this ruling wrongly takes power away from states. Even though one federal judge rejected their suit, two others green-lit similar challenges, possibly setting up a higher court review.
Roy also wants to overturn *Obergefell v. Hodges*, the 2015 ruling that legalized same-sex marriage. He put it this way at the forum: “There’s a war raging against our souls as Texans, and those things need to be fought.”
Usually, an AG would have to wait for the state legislature to pass a new law that challenges an old Supreme Court ruling. Then, if someone sues the state, the AG gets their chance to take the case up to the highest court. But the current AG, Ken Paxton, has found ways around that. Remember when lawmakers didn’t pass Middleton’s bill to stop undocumented college students from getting in-state tuition? Paxton worked with the Trump Department of Justice to try and overturn that law through the courts anyway.
This means the next Attorney General might not even need the Legislature’s help if they want to target something like public education access for undocumented students. If there isn’t enough political will to pass a new law, an AG could still find other legal paths to push their agenda. In fact, a Republican lawmaker recently told the Tribune that the “mainstream” of the Republican caucus wasn’t interested in challenging *Plyler*. But as the in-state tuition case shows, an AG can work outside the normal process.
Vladeck summed it up well: this is pretty much what happens when the AG’s office becomes so political. He said that when state attorneys general see themselves as more than just enforcers of state law, when they take on a broader role as "front-line advocates," then being so clear about their big, sweeping goals isn't really surprising. It’s a bit unsettling, though, when you think about the legal implications for everyone in Texas.
Original source: Politics – Houston Public Media.
