What A Difference A Year Makes

In the two years that my term as Texas Attorney General overlapped with the Obama presidency, I sued his Administration 22 times to uphold the Constitution and the rule of law, preserve states’ rights, and stop it from bypassing Congress. The White House orchestrated these end-runs to hijack the legislative process and force ideological agendas on the nation. Six of Texas’ lawsuits reached the U.S. Supreme Court.

State legal challenges against the federal government are nothing new, but Texas has enjoyed success by constructing the template for multi-state coalitions of attorneys general to sue and overturn federal policies that overstepped executive authority, such as:

• The U.S. Department of Labor’s illegal overtime and persuader rules, which threatened state and local governments, as well as businesses, with higher operating costs;
• The U.S. Environmental Protection Agency’s (EPA) Regional Haze rule, which would have cost the states $2 billion and raised energy rates for Texans while endangering our power grid; and
• The Obamacare mandate that forced doctors to provide sex change surgeries and abortions, even if they objected because of their religious beliefs or best medical judgments.

During the Obama era, federal officials initiated significant regulatory actions by executive fiat. One example was the Obama Administration’s guidance letter to public schools, which directed local school officials to allow transgender students to use the bathrooms of their choice, or risk losing federal funding for non-compliance. Texas fought back with a 13-state coalition that won a nationwide stay blocking the directive from taking effect.

Another Obama-era memorandum created the Deferred Action for Parents of Americans (DAPA) program, which unilaterally conferred lawful presence and work authorization on millions of unlawfully-present aliens in the U.S. As a result, Texas and other states would have to pay more for basic governmental functions such as education, health care, and public safety, to mention a few. Fortunately, the courts blocked DAPA after Texas led a 26-state coalition challenging its legality all the way to the U.S. Supreme Court. The executive amnesty program violated the rule of law, which President Trump recognized when he revoked DAPA last June.

President Obama also hatched the Deferred Action for Childhood Arrivals (DACA) program after Congress rejected DACA’s legislative corollary, the Development, Relief, and Education from Alien Minors (DREAM) Act. Aside from providing a pathway to citizenship, DACA allowed aliens to leave and re-enter the country, removed eligibility bars from Social Security, Medicare, and the Earned Income Tax Credit, and conferred eligibility for state benefits.

Siding again with the rule of law, President Donald J. Trump agreed to phase out DACA after Texas led a 10-state coalition requesting that his Administration do so by September 5, 2017 or face legal action. Like DAPA, if DACA were left intact, it would set a dangerous precedent by giving the executive branch sweeping authority to circumvent Congress and change our nation’s immigration laws.

Today, consistent with the rule of law and the principle of separation of powers, Congress has the opportunity to act.

We should applaud President Trump for following the law and staying within the power given to him by the Constitution. He is aggressively rolling back the administrative state and the worst excesses of the Obama era, which imperil the economy, businesses and job growth. Politico even reported that “the push to block, rewrite and delay scores of Obama-era rules may be the administration’s biggest untold success.”

During fiscal year 2017, the Trump Administration canceled or delayed 1,579 planned regulatory actions and withdrew another 635. And the White House has announced that federal agencies reduced lifetime regulatory costs by $8.1 billion, or $570 million annually.

Texas fought back against the Obama Administration’s Waters of the United States rule with a lawsuit that resulted in a nationwide stay from a federal appeals court. President Trump signed an executive order directing the EPA to review and either rescind or modify this misguided rule, which would have denied Texans and other Americans control over their own property.

Last April, Texas was once again victorious when a federal appeals court suspended the EPA’s Clean Power Plan, averting higher electricity costs and the weakening of our nation’s power grid. The Trump Administration has initiated action to repeal the plan, but West Virginia and Texas provided the impetus for its ultimate demise by leading a 24-state coalition lawsuit that culminated in a stay from the Supreme Court in 2016.

President Trump is accomplishing regulatory reform on multiple fronts. He signed an executive order mandating that for every new regulation, two old regulations must be eliminated. He issued another order to install regulatory reform task forces inside federal agencies in what Reuters reported “may be the most far-reaching effort to pare back U.S. red tape in recent decades.” And, teaming up with Republican leaders in Congress, the Trump Administration used the Congressional Review Act to roll back 14 rules President Obama issued at the end of his Administration, saving billions of dollars in costs.

As one commentator suggested, Trump “may be the first president in memory to actively limit his own branch’s power.” He is actively following through on the promise in his Inaugural Address to transfer power from Washington, D.C. and give it back to the people.

But additional steps can and should be taken. U.S. Attorney General Jeff Sessions set an example last November with a memo that prohibits the U.S. Department of Justice from issuing guidance documents that have the effect of adopting new regulatory requirements or amending the law.

Congress should put mechanisms in place to halt federal agencies from overstepping their boundaries, just in case we ever get a President who wants to steal power from Congress or the courts—or we get a liberal Judiciary that disregards the Constitution and laws and crafts laws of its own. Congress should pass the Separation of Powers Restoration Act, which would prohibit courts from deferring to agency interpretations of law. And it should enact the Regulations from the Executive in Need of Scrutiny (REINS) Act, which would require Congress to approve agency regulations exceeding an annual effect on the economy of $100 million.

Congressional action combined with continued regulatory reform by President Trump will ensure our nation’s economic prosperity, stimulate business and job growth, and restore the federalism our Founders established in the Constitution.

Ken Paxton is the Attorney General of Texas.