In 1975, Texas enacted a law that allowed school districts to deny undocumented students access to free public education. This legislative measure sparked a lawsuit from a group of families in Tyler, Texas, leading to a landmark U.S. Supreme Court case, Plyler v. Doe. In a decisive ruling, the Court declared the Texas law unconstitutional, affirming that all children have a right to public education, irrespective of their immigration status.
Fast forward to the present day, where the political landscape in Texas is once again scrutinizing this critical issue. At a recent candidate forum in Tyler, Republican contenders for the office of Texas attorney general expressed their intentions to challenge the Plyler ruling. U.S. Representative Chip Roy identified overturning this decision as a top priority in his campaign, while Senator Mayes Middleton labeled it a “terrible decision” that could potentially be overturned by the current conservative majority in the Supreme Court.
The commitment to targeting longstanding Supreme Court precedents reveals an aggressive shift in the role of the Texas attorney general. Both Roy and Middleton’s pledges suggest a desire to expand the office’s influence beyond its traditional boundaries, echoing the tactics of outgoing Attorney General Ken Paxton, who has aggressively pursued a conservative legal agenda.
The recent overturning of Roe v. Wade has emboldened conservative factions to seek further legal challenges to established rulings, such as those protecting same-sex marriage and maintaining the separation of church and state. Steve Vladeck, a law professor at Georgetown University, noted that the ambition of Roy and Middleton to redefine constitutional interpretation at a national level showcases a concerning level of hubris.
Both candidates are vying for support in a runoff election scheduled for May 26. At the Tyler forum, Roy articulated a comprehensive wish list of cases he plans to challenge if elected, emphasizing the need for vigilance in judicial battles. “We could sit here all night talking about cases that Texas ought to be challenging,” he stated.
A More Politicized Attorney General’s Office
Historically, state attorney general offices, including Texas’, were primarily bureaucratic entities focused on child support enforcement and litigation against state agencies. This role began to evolve in the 1990s, particularly as states initiated high-profile lawsuits against major tobacco companies. These actions marked a significant shift, positioning attorneys general at the forefront of public policy advocacy through legal channels.
The trend of politicization accelerated during the Obama administration when Republican states, led by former Texas Attorney General Greg Abbott, initiated lawsuits against federal executive orders. The Supreme Court’s 2007 ruling that offered states “special solicitude” to sue the federal government further empowered this shift. In recent years, Texas has become increasingly litigious under Paxton, who has filed over 100 lawsuits against the Biden administration, addressing issues ranging from COVID-19 vaccine mandates to immigration policies.
Both Roy and Middleton have embraced this trend of partisan litigation, with Roy boasting about his previous work undermining the Obama administration and opposing the Supreme Court’s same-sex marriage ruling. Middleton’s conservative legislative record includes efforts to promote pro-religion and anti-LGBTQ measures. Notably, he supported a bill requiring public schools to display the Ten Commandments, which faced legal challenges based on constitutional grounds.
Middleton has publicly framed his efforts as a battle against what he perceives as “atheist precedents” that hinder religious expression in public schools. He stated, “We have to defeat these atheist precedents that have stopped prayer in school, that have stopped children from going to Christian schools.”
Should Middleton assume the role of attorney general, he will not only defend existing lawsuits but may actively seek to promote legal avenues advancing religious freedom. Vladeck expressed skepticism about the Supreme Court’s willingness to reverse established precedents, but he acknowledged that the political climate can shift rapidly.
Roy has explicitly stated his desire to challenge key precedents, including Wickard v. Filburn, which established broad federal authority over interstate commerce. Conservative legal organizations, such as the Texas Public Policy Foundation, have argued that this ruling has improperly restricted state powers. While some legal challenges have been dismissed, others have gained traction, indicating a potential for higher court intervention.
Roy has also expressed a desire to overturn Obergefell v. Hodges, the 2015 ruling that legalized same-sex marriage. “There’s a war raging against our souls as Texans, and those things need to be fought,” he remarked at the campaign forum.
Typically, an attorney general must await legislative action that conflicts with existing precedent, relying on lawsuits to reach the Supreme Court. However, the current attorney general has demonstrated ways to circumvent traditional procedures. Following legislative inaction on a bill to deny in-state tuition to undocumented college students, Paxton negotiated with the Trump administration to challenge the law in court.
The next attorney general could adopt a similar strategy if the legislature lacks the political will to challenge educational access for undocumented students. Recent comments from Stephen Miller, a senior advisor to former President Trump, have intensified scrutiny on why Texas GOP lawmakers have not acted against the Plyler ruling.
Despite internal Republican dissent regarding the challenge to Plyler, the potential for an attorney general to leverage their position to advance political objectives remains evident. “This is, in some respects, the inevitable consequence of the politicization,” Vladeck remarked. “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.”
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