The Lone Star Way: Why Texas’ Legal War with the Federal Government Could Be the Biggest One Yet

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Texas Attorney General Greg Abbott speaks to reporters during a break in a hearing of the House Energy and Commerce Committee's Energy and Power Subcommittee in Washington on Feb. 9, 2011

The debate over what has come to be called Obamacare moved into the eye of a political storm last week as the U.S. Supreme Court weighed the law’s constitutionality. With its civilized tone, the legal discourse was akin to the calm in the center of a hurricane. But at the periphery of the same storm, a multitude of other legal fights are sweeping through federal courts across the country, evidence of the tumultuous relationship between conservative states and the federal government. Some of the strongest winds are blowing out of Texas, a state with a passionate independent streak and a long history of conflict with the federal government.

Some 26 state attorneys general lined up against the Obama Administration on the health care law. Among them was Texas Attorney General Greg Abbott, 54, who has made his state a leader in the fight against what he sees as overweening federal power by bringing some 23 lawsuits to federal court, an unprecedented number even for Texas. Abbott, a former Republican Texas Supreme Court justice, has challenged the feds on issues ranging from voter ID to women’s health care, and from clean-air rules to contraception coverage. Last week, Abbott was in Washington to observe the oral arguments on health reform and tweet his impressions: “[Justice Anthony] Kennedy said #Obamacare changes the historic relationship between gov’t and individuals,” he observed, clearly pleased.

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But while the attorney’s thumbs were atwitter, his office back in Texas was pushing out a press release trumpeting a legal victory involving another example of what Abbott calls “unlawful overreach” by the Obama Administration — in this case, the Environmental Protection Agency. With the Supremes dominating the news, a ruling by the U.S. Court of Appeals for the Fifth Circuit in New Orleans in favor of Texas made few headlines beyond the state. The judges found that the EPA had acted “arbitrarily and capriciously” in rejecting Texas permit standards for regulating pollution at energy-producing plants under the Clean Air Act. The judicial panel ordered the EPA to take another look at the standards and act “expeditiously,” chiding the agency for taking over three years to act when the statutory deadline was 18 months.

“Showing seemingly no regard for the federal laws that govern what it can and cannot do, the EPA unlawfully disapproved a commonsense Texas air permitting program that fully complied with the federal Clean Air Act and reduced harmful emissions,” Abbott said in a midweek press release. “The EPA disregarded the limited authority it was granted under federal law and incorrectly alleged that Texas would not act sensibly and in accordance with its own laws.”

“Texas has such a long and prickly relationship with the federal government,” says Cal Jillson, a political scientist at Southern Methodist University. In the decade after the state joined the Union in 1845, Texans were vocal in their criticism of Washington for failing to protect the border with Mexico and for not aiding with the fight against Indians on the frontier, says Jillson. Then, following the discovery of vast offshore oil reserves in the 1930s, the state battled the federal government to retain control of its reserves. Dubbed the “tidelands controversy,” the epic battle culminated in 1953, when Congress recognized Texas’ rights under its Annexation Agreement, an issue on which President Dwight D. Eisenhower had campaigned and promised to settle to the satisfaction of Texans.

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Those wounds are still raw in Texas. Abbott’s 18 lawsuits largely enjoy public support, including from Republican governor Rick Perry, a man who, like Abbott, has his fingers on the pulse of the traditional Texan zeitgeist. But while Perry sports cowboy boots emblazoned with Texas revolutionary slogans and sprinkles his Tea Party speeches with references to the 10th Amendment — and even secession — Abbott has taken his fight to the legal arena. Described by the Dallas Morning News in a 2010 profile as having a “folksy charm” but casting a “polarizing shadow,” Abbott is widely believed to be setting the stage for a run at the governorship, maybe even challenging Perry if he seeks another term in 2014.

Confined to a wheelchair since age 26, when a storm-damaged oak tree fell on him as he jogged through Houston’s posh River Oaks neighborhood, Abbott has gained a reputation as a tenacious and skilled lawyer. In 2005 he won a case before the U.S. Supreme Court that allowed Texas to continue to display a monument citing the Ten Commandments on the state capitol grounds.

Jillson and other Texas political observers see Abbott’s legal challenges to the Obama Administration as both emblematic of the Texas spirit and a sure sign of his ambitions for higher office. Both Perry and Abbott view the “Obama Administration and the federal government as interfering with the state’s prerogatives at every turn,” Jillson says. Overreach is a term that appears in press release after press release issued by the offices of both Perry and Abbott.

In his latest lawsuit, filed in late March, Abbott is trying to prevent the federal government from cutting off Medicaid funds to the Texas Women’s Health Program following the state’s move to cut Planned Parenthood from the program. Texas claims that the Planned Parenthood clinics serving the program, which do not provide abortions, are not sufficiently separated from the clinics that do provide them. The Centers for Medicare and Medicaid Services did not respond directly to the lawsuit, but the agency’s director issued a statement saying that “patients, not state government officials, should be able to choose the doctors and health care providers best for them,” and noted that the Bush Administration turned down a similar request from Texas in 2005.

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The lawsuit opened some old political wounds within the Texas Republican Party when U.S. Senator Kay Bailey Hutchison, the Dallas Republican who was handily defeated by Perry in the 2010 primary battle for governor, came to Planned Parenthood’s defense. “I do think that the governor needs to sit down with the federal government and work it out so that we can have our share — our fair share, not more — of money for Medicaid to help low-income women have their health care services,” Hutchison told MSNBC’s Chuck Todd. “We cannot afford to lose the Medicaid funding for low-income women.” Perry has pledged to replace the federal funds with state money.

Democrats like state representative Garnet Coleman of Houston view the Medicaid funding brouhaha as another of Abbott’s “frivolous lawsuits,” while Perry hailed it as another attempt by Texas leaders “to carry out the will of the people.” But beyond the lawsuits over health care, contraception coverage, various EPA regulations and others, there is one fight that may bring the U.S. Supreme Court front and center again in a crucial battle between the states and the federal government.

Abbott has launched what some critics believe to be a frontal assault on the Voting Rights Act (VRA), landmark legislation passed in 1965 that gave the federal government oversight of elections in primarily Southern states with a history of disenfranchisement of blacks. The VRA has been amended and renewed four times, but the latest extension, in 2006, prompted a congressional debate over the necessity of continuing some of the law’s provisions in what some see as the new, integrated South. In early March, the U.S. Department of Justice rejected Texas’ newly enacted voter ID law — under the VRA, Texas is one of several states subject to federal review when amending its voting laws or drawing new lines for its congressional districts. Two days after Texas got the word from DOJ, Abbott amended his court filing objecting to the DOJ response, directly challenging the VRA. Abbott’s filing stated that the VRA, as amended in 2006, “exceeds the enumerated powers of Congress and conflicts with Article IV of the Constitution and the Tenth Amendment.”

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Some observers, like University of California election-law expert Richard Hasen, say this challenge may equal the health reform suit in potential impact. Hasen, author of the Election Law Blog, predicts that the Supreme Court, based on an 8–1 ruling in a 2009 case that seemed to recognize change had come to the predominantly Southern states subject to the VRA, may be open to reconsidering parts of the law. Hasen says the high court may also be open to taking the Texas voter ID case and ruling before the November election.

“Texas, throughout its history, has been wary of any outside imposition on its autonomy,” Jillson says. “It’s like Russia and the Cold War — the tension between Texas and the national government.” And while “Obamacare raises the hair on the back of their necks,” as Jillson says, Abbott and Perry are after plenty of other targets.

This story has been updated to correct the spelling of Abbott’s first name and the number of lawsuits Texas is currently pursuing against the federal government.