Texas led the charge in challenging President Barack Obama’s expansion of executive powers, but Attorney General Ken Paxton says he expects that to change under President Trump, who he said appears ready to leave far more discretion in the hands of states.
But Mr. Paxton, a Republican, said there’s still more work to do in reining in the power of the administrative state, warning that America is in danger of becoming a “post-constitutional” nation if the executive branch continues to spew out regulations.
“Our Founding Fathers, because they didn’t trust government, they divided power, and they further divided it by leaving most of the power at the state level,” Mr. Paxton told The Washington Times in an interview. “Well, the Obama administration was stealing all of that, stealing congressional power by rewriting statutes.”
His biggest wins include halting Mr. Obama’s deportation amnesty, the EPA’s “Waters of the U.S.” rule and a transgender bathroom mandate issued jointly by the Education and Justice departments.
Yet Mr. Paxton said counting on the courts is a bad idea, saying that judges are a fickle lot to rely on, particularly after the death of U.S. Supreme Court Justice Antonin Scalia last year.
He pointed to the Supreme Court’s 4-4 decision that left in place an appeals court ruling blocking Mr. Obama’s expanded deportation amnesty for as many as 4 million illegal immigrants. The fact that the ruling was so closely divided is worrying, he said.
“I saw four justices who were basically willing to give Obama the power to change the law and rewrite statutes,” he said. “I was like, if we lose this election and Hillary appoints a fifth judge who agrees with them, we are in a post-constitutional America.”
Mr. Paxton said Congress should pass the Separation of Powers Restoration Act, which would prohibit courts from deferring to agency interpretations of law, and the Regulations from the Executive in Need of Scrutiny Act, which would require Congress to approve agency regulations exceeding an annual effect on the economy of $100 million.
“I’ve been meeting with congressmen because I’m asking them to figure out some way to have them prevent this from happening in the future, so if we get a president that wants to steal power from Congress or the courts, or we get a really liberal judiciary that doesn’t care about the Constitution, that Congress can have a mechanism to go back and stop agencies from overstepping their boundaries,” he said.
Mr. Paxton still has pending court cases against rules passed by the previous administration, including one challenging the EPA’s Clean Power Plan, which Mr. Trump reportedly plans to rescind this week.
Pointing to the repeal of the transgender bathroom order, the Texas attorney general said he’s optimistic about the direction of the new administration.
At this year’s Conservative Political Action Conference, White House chief strategist Steve Bannon said one of the Trump administration’s three main goals is “the deconstruction of the administrative state.”
Jim Granato, a political science professor at the University of Houston, said Texas is far less likely to sue the federal government when it comes to health care, immigration or the environmental policy now that a Republican administration is in control.
“They’re going to be more in line with what President Trump is doing,” Mr. Granato said. “There’s no doubt in terms of things with energy regulations, reforming border security — [on] all those things I think you’re going to see less contentiousness.”
But he said court challenges will come from blue states indignant over the new president’s policies.
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