It depends, but basically it’s up to the new Solicitor General, since he is the one defending the federal government’s actions.
Since Paxton assumed office as AG in January 2015, Texas has sued the federal government more than a dozen times, raising questions about White House policy on such a wide range of topics as internet governance, overtime pay, transgender bathrooms, clean power, clean water and immigration.
Now that the Oval Office is awaiting a new Republican occupant, the question arises: What will happen to Paxton’s brand as a White House challenger and to all those lawsuits?
Paxton has not yet showed exactly how he will respond to the new administration, although he supported President-elect Donald Trump’s candidacy.
Marc Ryland, a spokesman for the Texas AG’s Office, emailed this statement in response to a request for comment for this story: “We have a host of cases pending against the federal government due to the Obama administration’s overreach. Some cases challenge statutes only Congress can change, some challenge agency rules that go through notice-and-comment rulemaking, and some challenge informal agency guidance. We will continue to pursue all of these cases and look forward to working with a new administration to seek to conform its actions to the Constitution.”
Neal Devins is among those who expects the federal government, under the new administration, to take steps to undercut the basis of the Texas AG’s legal challenges.
In instances in the past, when the party occupying the White House has changed, the federal government has changed its policies and asked courts as a result to moot lawsuits against it, according to Devins, a professor at William & Mary Law School in Williamsburg, Virginia, who tracks state attorneys generals litigation.
“This has happened. The Solicitor General confesses error,” Devins said.
But that new-sheriff-in-town approach doesn’t always go smoothly.
Devins cites the 1981 federal lawsuit against Bob Jones University, whose tax-exempt status was being litigated over its discriminatory policies. (*) Ronald Reagan’s administration tried to moot the issue by changing federal policy, but there was a political backlash and the case continued, with SCOTUS eventually denying BJU its tax exemption. I suppose something like that could happen with one or more of the cases that the Trump Justice Department might seek to drop, but I wouldn’t count on it. Assume these will all be wins in some form for Paxton, and go from there.
(*) This, as the Slacktivist has reminded us, was the true genesis of the religious right as a political movement. Not abortion, but Bob Jones’ desire to maintain tax exempt status while remaining racially segregated. Molly Ivins once said “I believe all Southern liberals come from the same starting point–race. Once you figure out they are lying to you about race, you start to question everything.” This is what she was talking about.