In 1975, Texas passed a law allowing school districts to exclude undocumented students from free public school. When a district in Tyler enacted such a policy, a group of families sued.
The U.S. Supreme Court ruled in Plyler v. Doe that Texas’ law was unconstitutional and children had a right to public education, regardless of their citizenship status.
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Five decades later, at a candidate forum in the same city that gave rise to that landmark ruling, the Republican candidates for Texas attorney general laid out their plans to use the agency to overturn it.
U.S. Rep. Chip Roy said it was one of his “foremost priorities of running for attorney general.” Sen. Mayes Middleton said it was a “terrible decision” that could be overturned if a case was brought to the new conservative majority on the Supreme Court.
More than just campaign trail grandstanding, these promises from both candidates to use the agency to try to overturn decades-old Supreme Court precedent offer a glimpse at how Texas’ next attorney general could go even further than outgoing incumbent Ken Paxton in channeling the office’s powers toward pursuit of the conservative legal movement’s white whales.
Empowered by the overturning of Roe v. Wade and the Supreme Court’s current favorable makeup, conservatives are itching to go after other long-standing rulings such as those allowing gay marriage, keeping religion out of government and giving the feds authority over the states.
In touting their willingness to bring these cases, Roy and Middleton are making it clear they intend to push the office’s partisan agenda even further than Paxton, said Steve Vladeck, a law professor at Georgetown University.
“The notion 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,” Vladeck said. “One might even say it’s Texas-sized hubris.”
Roy and Middleton, who are facing off in a May 26 runoff, did not respond to requests for comments. But at the campaign forum in Tyler, Roy said he had a laundry list of cases he’d like to challenge if elected as attorney general.
“We could sit here all night talking about cases that Texas ought to be challenging,” Roy said. “We have to be vigilant in challenges at every single turn.”
A more politicized AG’s office
Thirty years ago, most state attorney general offices, including Texas’, were bureaucratic backwaters that mostly handled child support enforcement and lawsuits against state agencies. This began to change in the 1990s, when states teamed up to bring massive consumer protection lawsuits against the big tobacco companies on behalf of their citizens. Suddenly, attorneys general were on the front lines of pushing public policy through the courts.
The tobacco litigation was bipartisan, as was most of the proactive state legal action — in the beginning. That changed during the Obama administration, when red states, led by then-Texas Attorney General Greg Abbott, began suing to stop executive orders related to the environment and immigration. They were empowered by a 2007 Supreme Court ruling giving states “special solicitude” to bring lawsuits against the federal government on behalf of their constituents.
Blue states took up the mantle during the first Trump presidency. When Joe Biden was elected in 2021, Paxton vowed to use the full force of his agency against the president’s agenda. In the end, Texas sued the Biden administration more than 100 times, over everything from abortion policy to COVID vaccines. Since Trump returned to office, Paxton has turned his attention to suing nonprofits, private companies and local governments over a wide range of culture war issues.
Roy and Middleton have both vowed to continue that new tradition of partisan litigation. Roy, who worked under Paxton at the agency a decade ago, proudly touts his role in suing the Obama administration and trying to block the implementation of the Supreme Court’s gay marriage ruling. Middleton, one of the most conservative members of the Legislature, is running on his record of pushing pro-religion and anti-LGBTQ bills — one of which is already testing decades-old legal precedent.
Last session, Middleton helped carry a bill to require public schools to hang the 10 Commandments in classrooms, which a judge blocked from taking effect, citing a 1980 Supreme Court ruling that found such a requirement to be unconstitutional. The 5th U.S. Circuit Court of Appeals has allowed the law to go forward while it considers arguments against it.
“We have 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,” Middleton said at the Tyler campaign forum, citing what he called the “false doctrine of separation of church and state.”
If elected attorney general, Middleton would be tasked with defending lawsuits like these — and potentially seeking out other legal avenues to advance the religious freedom agenda. Vladeck said he’s skeptical that this Supreme Court is as eager to reverse itself on those issues as conservatives hope, though he noted “things can change quickly.”
“But the larger point is, why would a single state attorney general consider themselves in a position to lead the charge on that?” he said. “Attorneys general are tasked with enforcing state law, not charging into reinterpreting the meaning of the federal Constitution.”
Roy has been more explicit about his desire to overturn precedent, including Wickard v. Filburn, a Great Depression-era case that gave the federal government wide-ranging authority over any commerce that could potentially cross state lines. Several conservative legal groups, including the Texas Public Policy Foundation, where Roy once worked, have said in recent lawsuits that the ruling has led to a system that unconstitutionally takes power away from the states. While a federal judge rejected TPPF’s suit, two other federal judges green-lit similar challenges, setting up a potential opportunity for higher courts to weigh in.
Roy has also talked about wanting to overturn Obergefell v. Hodges, the 2015 same-sex marriage ruling. “There’s a war raging against our souls as Texans, and those things need to be fought,” he said at the campaign forum.
In most cases, the attorney general would have to wait for the Legislature to pass a law that violates precedent, and hope that the state gets sued to try to bring a case to the Supreme Court. But the current attorney general has found ways to sidestep that process. After legislators declined to take up Middleton’s bill prohibiting undocumented college students from getting in-state tuition at state colleges and universities, Paxton brokered a deal with the Trump Department of Justice to overturn the law through the courts.
The next attorney general could take a similar tack, for example, if there is not enough political will in the Legislature to pass a law taking aim at public education access for undocumented students.
After senior White House adviser Stephen Miller recently pressed Texas GOP lawmakers on why they hadn’t already challenged the Plyler ruling, one Republican told the Tribune that the “mainstream of the Republican caucus” wasn’t interested in challenging Plyler.
But the in-state tuition case, Vladeck said, demonstrates the potential for an attorney general to work around the usual systems to advance their political goals.
“This is, in some respects, the inevitable consequence of the politicization,” he said. “In a world in which state attorneys general view themselves as responsible not just for the laws of their state but for some broader front-line advocacy role, being so blatant about their goals is unsurprising, if a bit troubling.”
Disclosure: Texas Public Policy Foundation has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.