Texas GOP waiting for legal battle with Biden
As Democrat outlines big plans, conservatives are ready for fight
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.
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.
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.
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.