Why lawsuit-happy Texas Republicans win even when they lose

Opinion by James Moore

The state of Texas is lawsuit happy.

Almost every time the White House or Congress institutes a law that Texas leadership doesn’t like, the state sues Washington, D.C. The suits, which often fail in federal court, are largely a waste of thousands of hours of time by state attorneys general and millions of dollars in taxpayers’ money.

Why pursue these losing cases? Because, historically, they are more about politics than the law. Texas politicians have mastered the art of weaponizing the court system against their political opponents, and in doing so turning out large numbers of their conservative base on Election Day.

Two high-profile failures prove the political motivations of Texas’ leading conservatives. The state’s attorney general, Ken Paxton, recently led 18 Republican-controlled states in a lawsuit to strike down the Affordable Care Act (ACA), popularly known as Obamacare. Paxton argued that the ACA was unconstitutional because it forced Americans to buy health care. His claim was that when Congress eliminated the penalty for the individual mandate, the law became legally unsupportable.

The US Supreme Court ruled that Texas lacked standing to sue because it could show no harm caused by the law. Even though the majority conservative high court now has rejected three suits against the ACA, Paxton’s office says he has “only just begun” his legal battle and that he will not quit because the “ACA was sold on a lie.”

Those quotes suggest the true purpose of the lawsuit. After three Supreme Court denials, there’s really no place to take Texas’ claims. However, by publicly stating that he still intends to fight, Paxton keeps the state’s conservative political base motivated. Hatred of government-instituted ACA has been an animating force for the radical right for more than a decade. Keep suing, and they’ll keep voting — or so goes the thinking.

But this isn’t Paxton’s first failure before the high court. The Supreme Court also denied his case to overturn the 2020 election results in four swing states: Georgia, Pennsylvania, Michigan and Wisconsin. And it did so on similar grounds, finding that Texas lacked standing to bring the case.

To many, even some Republicans, the suit was considered nothing more than a public relations stunt, designed to curry favor with then-President Donald Trump, in the hopes he might grant Paxton a pardon for his legal troubles. The Texas attorney general is facing an upcoming trial on securities fraud and an FBI investigation into claims he used his office for bribery. He has broadly denied any wrongdoing regarding the allegations and investigation into his conduct and has rejected the notion that that suit was pardon-motivated.

Meanwhile, Paxton only accelerated his filing of lawsuits when President Joe Biden took office — making Texas the first state to sue the Democrat just two days after his inauguration. The case was an objection to an executive order freezing deportations of individuals who entered the country illegally for 100 days, and a rarity because Paxton won. By mid-April of this year, Paxton had already filed eight lawsuits against the Democratic president, including an attempt to stop a government environmental working group from assessing harm caused by certain emissions.

Paxton appears to be following in the footsteps of Republican Texas Gov. Greg Abbott, who preceded Paxton as the state’s attorney general. Abbott proudly told supporters that his job as attorney general was easy — “I go into the office in the morning, I sue Barack Obama, and then I go home.”

Together, Abbott and Paxton sued the Obama administration at least 48 times during his eight years in office, according to a Texas Tribune analysis. The results were decidedly mixed with 12 losses, nine cases withdrawn and 20 pending as of the end of Obama’s term.

Abbott, himself, has endured endless accusations of hypocrisy on his tendency to sue. When he was 26 and paralyzed permanently from the waist down by a falling tree in Houston, he sued the homeowner and an insurance company for a case that was settled for approximately $11 million. Yet, as attorney general and while a state Supreme Court justice, he pushed Texas’ tort reforms that limit the payout in cases similar to his. Medical malpractice laws in Texas now restrict non-economic damages to $250,000.

But Abbott and Paxton keep bringing cases against the federal government, helping to position the governor as a potential presidential candidate in 2024. The cases — many on social wedge issues like benefits for same-sex couples and refugee and immigration caps — appear designed to position Abbott as champion aggressor against an overreaching Democratic administration, rather than as an executive looking to uphold the letter of the law.

Thus far, Texas voters have paid little attention to the rank contradiction between Abbott and Paxton, who has also pushed for tort reform, trying to reduce the number of lawsuits filed by their own citizens while firing off consistent legal challenges against the federal government.

Too bad Texans can’t sue the GOP for hypocrisy.