Houston Chronicle

Texas GOP waiting for legal battle with Biden

As Democrat outlines big plans, conservati­ves are ready for fight

- By Benjamin Wermund

WASHINGTON — President-elect Joe Biden has big plans for his first 100 days in office, during which he has vowed to roll back the Trump administra­tion’s immigratio­n crackdown, push policies addressing climate change and potentiall­y forgive student debt for thousands of Americans.

He’s also said he’ll push a mask mandate to combat COVID-19 and wants Congress to pass another massive stimulus package. And in the longer term, Biden has talked about rewriting the tax code to raise the share paid by the rich.

Texas is almost certain to fight him every step of the way.

The state is about to be back on the front lines battling against the federal government, a long tradition for its Republican leaders, from former Gov. Rick Perry to Gov. Greg Abbott — who as the state’s attorney general famously said, “I go into the office, I sue the federal government and I go home.”

Abbott’s successor, Attorney General Ken Pax

ton, has been just as committed to pushing back on federal laws and mandates championed by Democrats. Most recently he led a failed lawsuit seeking to overturn Biden’s victory in four battlegrou­nd states at the U.S. Supreme Court. Paxton did not respond to a request for comment.

As Biden takes office next week, many expect the state to pick up where it left off after suing the Obama administra­tion dozens of times to stop initiative­s such as the Clean Power Plan, scrap protection­s for immigrants brought to the country illegally as children and end the Affordable Care Act.

The conservati­ve Texas Public Policy Foundation — which filed the Obamacare challenge that Paxton joined and is now before the Supreme Court — is gearing up to start grinding out challenges to a slew of White House priorities regarding immigratio­n, energy and taxes.

“On the eve of the election we were discussing internally, ‘Well, what would happen if Biden won?’ One thing everyone pretty much agreed on is our litigation center would probably increase in size significan­tly,” said Chuck DeVore, vice president of national initiative­s at the policy foundation. “We’re kind of excited about it.”

Robert Henneke, general counsel at the foundation, wouldn’t say whether the group’s legal staff has grown as expected but did say they are bracing for battles ahead as he expects the Biden administra­tion to “pick up where the Obama administra­tion left off.”

Texas will, too. “Litigation challengin­g unconstitu­tional action from the Biden administra­tion will be a central issue,” Henneke said. “Where the new administra­tion seeks to go out of bounds of what powers have been delegated to it or enacts policies and rules that aren’t supported by data and science, I expect that we’ll be chief among those challengin­g those type of policies.”

Here is a preview of the looming legal battles.

Affordable Care Act

The state, along with the foundation, is suing to end the Affordable Care Act — which Biden said he wants to strengthen — in a case that the Supreme Court heard last year and could decide any day.

A ruling in Texas’ favor, which appears unlikely, could nonetheles­s present a major roadblock in Biden’s first months in office and an early test of his ability to navigate a Congress his party will control — but where many Democrats want bolder health care options than Obamacare offers now.

Texas leads the nation in uninsured, and nearly 1.3 million Texans signed up for Affordable Care Act health plans in November, a 15 percent jump over the previous year.

DACA program

Texas is also still challengin­g the Obama-era Deferred Action for Childhood Arrivals program, which the Supreme Court blocked President Donald Trump from ending.

Biden has said he’ll work to protect it. That case is before Andrew Hanen, a conservati­ve federal district court judge in Houston who has said he believes DACA as enacted by Obama is unconstitu­tional.

The Biden administra­tion, meanwhile, is eyeing expanding the program. Vice President-elect Kamala Harris earlier this month said the administra­tion is planning to push a sweeping immigratio­n bill that, among other things, would give green cards to those protected by DACA.

Asylum and the border

Immigratio­n is almost certain to be a flashpoint in the early years of the Biden administra­tion. Biden has said he wants to undo most of Trump’s strict immigratio­n policies, including his asylum policies, which require tens of thousands of migrants to await hearings in Mexico.

But his advisers have warned Biden in recent weeks that might not happen on Day One as he promised, as they fear it could lead to another surge in migration at the border.

“The timeline is to do it so that we in fact make it better, not worse,” Biden said in December.

Some Texans, including U.S. Rep. Henry Cuellar, D-Laredo, are calling on Biden to quickly end constructi­on of the border wall.

Cuellar in December urged the incoming president to cancel all federal constructi­on contracts and dismiss all condemnati­on suits.

Energy transition

Biden has hand-picked a team of progressiv­es on the issue of climate change and will have control over both houses of Congress, giving him a shot at moving the nation away from fossil fuels to a degree that far exceeds the efforts of past presidents.

Texas led 25 states in suing to stop Obama’s Clean Power Plan, which sought to combat climate change by reducing carbon emissions at existing power plants.

And when the Trump administra­tion scrapped that plan, the policy foundation sued over its replacemen­t, arguing the Environmen­tal Protection Agency doesn’t have the power to regulate the emissions.

“A large number of states and environmen­tal groups sued to challenge the rule saying it did not do enough. We were the only conservati­ve group to sue challengin­g the authority the EPA had to do that type of regulation in the first place,” Henneke said.

That case is before the D.C. Circuit now, and a ruling for the policy foundation could complicate Biden’s efforts.

Trump tax cuts

Biden says he wants to rewrite the tax code to undo the Trump tax cuts Congress passed in 2017 and raise taxes on corporatio­ns and the rich.

Texas Republican­s, including U.S. Rep. Kevin Brady of The Woodlands — the top Republican on the House Ways and Means Committee that wrote the tax bill — are likely to fight that effort in Congress.

But DeVore said he’s especially focused on one element of the tax code that Biden is likely to target — and that may get overlooked in Texas, where there is no state income tax.

The 2017 tax bill set a $10,000 cap on the federal deduction that can be claimed by those who pay state and local taxes. The move, DeVore says, gave Texas even more of an edge in wooing businesses from states such as California and New York, where leaders were used to writing off much more of the state income taxes. Removing the cap, DeVore argues, would be a blow to Texas’ economic developmen­t efforts.

Civil rights

If the Obama years are any guide to Biden’s administra­tion, the Department of Justice and other federal agencies, such as the Education Department, are likely to beef up their efforts to enforce civil rights laws — which was a fertile area for lawsuits in Texas.

The state sued to stop Obama-era rules requiring schools to allow transgende­r students to use bathrooms correspond­ing to their gender identity. Texas also sued over requiremen­ts to grant work benefits to some same-sex couples, among other things.

But a civil rights-focused federal government could also target Texas, especially as the state Legislatur­e gears up to redraw congressio­nal districts — a process that virtually always ends up in court — and prepares to further tighten voting restrictio­ns. The Obama administra­tion’s Justice Department sued over Texas’ congressio­nal maps and challenged the state’s voter ID laws in 2013.

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