Federalism as a Check on Executive Authority [2017 Annual Texas Chapters Conference]
Articles,  Blog

Federalism as a Check on Executive Authority [2017 Annual Texas Chapters Conference]


Uh, it’s my pleasure and honor, to, uh, moderate
our last panel of the day today, thank you for hanging around. I think Leif is correct, that we’ve saved
the best for last. Uh, before taking office as governor in 2015,
Greg Abbott served three terms, twelve years, as Texas attorney general. Half of his time as AG overlapped with the
first three quarters of the Obama administration, and countless times during those six years,
General Abbott described his typical work day like this: “I go to work, I sue the federal
government, and I go home.” (laughter)
That’s only a slight exaggeration. The type of litigation General Abbott filed
against the Obama administration, a torch passed to, and happily taken by General Paxton,
uh, over two and a half years ago, will be a big part of what we talk about in our last
panel this afternoon. Our topic is Federalism as a Check on Executive
Authority. And among other things, we will discuss the
increasing prevalence of state versus federal government litigation, exemplified not only
by Texas efforts against the Obama administration, but also by those of other states against
the Trump administration, such, such as the attempts by New York, Washington, and others
to shut down the travel ban. We’ll also discuss the retrenchment of the
administrative state, and the assault over the last several years on the Chevron doc-doctrine. Now let’s meet our panelists. Starting from my right, and going to my left,
uh, Professor Ernest A. Young is the Alston and Bird Professor of Law at Duke University
School of Law, where he teaches constitutional law, federal courts, and foreign relations
law. He is one of the nation’s leading authorities
on the constitutional law of federalism, having written extensively on the Rehnquist Court’s
federalist revival, and the difficulties confronting courts as they seek to draw lines between
national and state authority. He is also an active commentator on foreign
relations law, where he focuses on the interaction between domestic and super-national courts
and the application of international law by domestic courts. Professor Young also writes on constitutional
interpretation and constitutional theory. And, he has been known to dabble in maritime
law and comparative constitutional law. Like many dabblers in maritime law, Professor
Young was born in Abilene, Texas. He joined the Duke law fac-faculty in 2008,
after serving as the Charles Alan Wright Chair in Federal Courts at the University of Texas
School of Law, where he had taught since 1999. A graduate of Dartmouth College and Harvard
Law School, he clerked on the First Circuit for Judge Michael Boudin and on the United
States Supreme Court for Justice David Souter. Professor Young practiced law at Cohen, Simpson,
Kalashaw and Wolf in Dallas and at Covington, Burling in Washington, where he specialized
in appellate litigation. He has also been a visiting law professor
at both Harvard and Villanova, as well as an adjunct law professor at Georgetown. An elected member of the American Law Institute,
Professor Young is an active participant in both public and private litigation in his
areas of interest. He, he’s been the principal author of amicus
briefs on behalf of leading constitutional scholars in several Supreme Court ca-cases
including Medellin versus Texas, concerning presidential power and the authority of the
International Court of Justice over domestic courts. And Gonzales versus Raich, concerning federal
power to regulate medical marijuana. Caitlin Halligan is a litigation partner in
the New York office of Gibson, Dunn, and Crutcher and co-chair with our Jim Ho of Gibson Dunn’s
Appellate and Constitutional Law Practice Group. She has argued six cases and served as counsel
of record in dozens of other matters at the United States Supreme Court. Ms. Halligan has also argued cases before
the Federal Appellate Courts, the New York Court of Appeals, and New York’s intermediate
appellate courts and participated in numerous other matters at the trial level as well. Before joining Gib-Gibson Dunn, Ms. Halligan
served as general counsel to the Manhattan DA’s office, from 2001 to 2007, uh, she served
as solicitor general for the state of New York, where she represented the state in federal
and state appellate courts and supervised a team of 45 lawyers. Ms. Halligan was also the first chief of the
New York attorney general’s Internet Bureau, where she developed law enforcement and policy
initiatives regarding online consumer fraud, privacy, online securities trading, and other
internet-related issues. Named by Benchmark Litigation as one of the
top 250 women in litigation, Ms. Halligan has also served since 2005 as a member of
Columbia Law School’s adjunct faculty. She also served in a pro bono capacity as
counsel to the board of the lower Manhattan Development Corporation, an entity charged
with leading the redevelopment of the World Trade Center site in downtown Manhattan. She has served as board member of the fund
for Modern Courts and National Center for Law and Economic Development, as well as a
member of several selection committees for the New York state courts. Ms. Halligan was a law clerk for U.S. Supreme
Court Justice Stephen Breyer and D.C. Circuit Judge Patricia Wald. She graduated magna cum laude from the Georgetown
University Law Center where she served as managing editor of the Georgetown Law Review
and participated as an Olin Fellow in Law and Economics. The office of Texas Solicitor General was
created by our lunchtime speaker Senator John Cornin shortly after he became attorney general
of Texas in 1999. Since then, under Generals Cornin, Abbot,
and now Paxton, the office has been a leader among the states in litigation against the
federal government and has been led by some of Tex-Texas’ most outstanding lawyers and
appellate advocates. Our beloved Greg Coleman was the very first
Texas solicitor general, followed by Julie Parsley, Ted Cruz, Jim Ho, Jonathan Mitchell
and the office’s current occupant and one of our distinguished panelists this afternoon,
the Honorable Scott Keller. Before becoming solicitor general, General
Keller served as U-U.S. Senator Ted Cruz’s chief counsel, and was an attorney at Yetter
Coleman in Austin. He clerked for U.S. Supreme Court Justice
An-Anthony Kennedy, held a prestigious Bristow Fellowship in DOJ’s Office of Solicitor General,
and clerked for 9th Circuit Judge Alex Kozinski. His law degree comes from the University of
Texas School of Law, where he was the student of one of our other panelists. Uh, he has argued eight cases before the United
States Supreme Court and has another one scheduled in about a month. Finally, like New Orleans Saints quarterback
Drew Brees, General Keller is also a proud Boilermaker, having received his bachelor’s
degree in Political Science and Philosophy from Purdue University. Uh, these are our panelists. (laughter, applause)
With, well, the four of us have come up with a very specific way to conduct our discussion
this afternoon. Professor Young is going to ki-kick us off
by laying out the topic, making a few provocative state-statements
(laughter) and then letting our two panelists react and
rebut, followed by some questions from y’all. Professor Young. Okay, well thank you, Justice Brown. I want to thank my friend Aaron Streett and
the Federalist Society for having me back here. It’s good to be home in Texas. Um, and it’s particularly good to be on a
panel with Caitlin, who I have known since I was a 2L in law school, and Scott, who I’m,
I, whom I have known since he was a 2L in law school. (laughter)
Um, I’m getting old enough that I’m starting to wonder whether I’m going to leave anything
behind as, as an academic and um, when I think about having had some part in the education
of people like Scott and all the, all that he’s accomplished for the public and for this
state, I, I’m just immeasurably proud. Um, Justice Brown stole my line about Governor
Abbott. I was gonna quote that too. I think every discussion of State solicitors
general in the state public law litigation, um, starts off with that for, for very good
reason. What I want to do is, is share with you a,
a little, just the gist of a project I’m working on with my colleague Maggie Lemos at, at Duke
um, about the role of public litigation by states in our federal system. And in, in particular, we want to think about
the role of these sorts of cases um, against a background of political polarization. So, so let me just start by talking a little
bit about what we mean by polarization and the, the impact that it has on federalism
and, and then move to the role that these cases can play in that. Um, and, and, you know, polarization can mean
you know, a lot of things and, and you can be forgiven for just using it as a broad term
to con-, to convey the fact that everybody seems mad at everybody all the time, but,
but the political scientists have a more specific definition. And, and it has to do with the parties having
become coherent ideologically, right? For a long time, the Republican party and
the Democratic party were big tents, they had both conservatives and liberals in both
parties. And that actually facilitated a lot of bipartisan
collaboration as people who were ideologically similar would cross the partisan line and,
and vote together and, and help get things done. Um, that is almost completely not true anymore. There are very few Rockefeller Republicans
or, or David Souter Republicans, if you will, left in, in the Republican party. There are very few, I would say, being from
Abilene, uh, Charlie Stenholm Democrats or Sam Nunn-type Democrats in the Democrat-cratic
party. You have parties that, that finally line up
with the ideological divisions in American society and, and that makes collaboration
very difficult. The other thing that has changed is that the
ideological difference between parties has broadened so the political scientists like
to map this on a continuum and they, they assign scores which I’m always a little skeptical
of but I think the general idea is true that the median Democrat disagrees more greatly
with the median Republican than, than was true 20 years ago. And so we have this situation of political
polarization. Um, federalism can be a safety valve for that,
alright? Because even though the part is fifty-fifty,
people of different ideological persuasions are not distributed evenly geo-geographically
and so it may be possible to reach consensus within a state on, on certain really divisive
issues even though you could reach that at the national level. And, and, in some states, the old head of
party systems do still prevail. So in Massachusetts, they still have liberal
Republicans and in Mississippi they still conservative Democrats and so it may be easier
to do things in a bipartisan way at the state level. Um, and this ought, this mechanism ought to
be self-enforcing because the, the effect that polarization has at the national level,
which is much more fifty-fifty tends to be gridlocked. And so you would think that polarization would
be good to the states because the federal government can’t do much and, and the field
would be left open for the states to handle these divisive questions and they, they’d
be able to do a better job because they’re not as polarized. Um, but actually what happens is polarization
doesn’t lead to gridlock so much as it leads to legislative gridlock which in turn leads
to executive action. Right? And so you see with both with, you know, George
Bush’s um, efforts in, in the regulatory area to, to do tort reform through the executive
branch and you especially see it with President Obama and his pen and phone say we can’t wait,
I, you know, if Congress won’t legislate on these, these, weighty matters, then I will
act alone. Right? And so, this adds separation of powers to
the mix of our debate about federalism. And, and it’s why I think you have federalism
creeping in to this, this conference which is primarily about executive power. Because the effect of polarization, which
ought to be to empower the states is more to empower the executive. Now, what does this have to do with lawsuits
by states? Um, we’ve seen a big increase in state government
litigation activity on matters of public law. Um, Governor Abbott is just one example of
that. Um, one reason for this is an institutional
change that’s largely independent of the national political picture, I think. And that’s just the beefed-up institutional
capacity that you see at the state level. When I was clerking back in the mid-nine-1990s,
we asked Justice Souter, you know, “Who do you think is, is the most-poorly represented
um, group before the states?” And looking back much further, um, he said
for a long time it w-was the state gov-governments. Right? Not indigent criminal defendants. They, they get appointed great lawyers for
them once they get the, to the, to the, Supreme Court. But the states were not well-represented. And they didn’t have that much, w-you know,
institutional capacity to carry on high-level litigation in a lot of context. And that has profoundly changed. And, and I, I think Governor A- um, you know,
Senator Cornin was instrumental in that, and, and there’s been a lot of efforts in other
states as well. The development of state’s solicitor generals’
offices and also much broader litigation practice in state government. So that’s one reason. But it’s also a response to these developments
at the national level. So gridlock mean- at the national level means
that the state AGs have to step in on the areas like pharmaceutical regulation and environmental
regulation in the absence of action by Washington. Um, if, if you have a polarized national government
that is dominated by one party for a, a short period of time, you could end up with quite
extreme legislation. I would say the Obamacare legislation was
an example of that. Which in ten- in turn tends to engender resistance
at the state levels that are you know, m-made up of a very different political composition. Um, executive action leads to a fight to contest
the content of national policy because the executive has to rely on the, these broad
delegations of statutory foray that are imminently contestable as to what they mean which prompts
the, the states to jump in and say well, no. I think actually the Clean Air Act means this
rather than that. Or the Immigration Act means this rather than
that. Um, and then polarization, I think, also creates
and imperative in state governments to express the point of view of their polity which will,
will often weigh in on one side or other of the id-ideological divide. So you saw widespread state par-participation
as amici in the same-sex marriage litigation, I think in order to express the sense of their
states, it’s, it’s, the profoundly expressive function. Um, so you see a, I think polarization in
genders is increased in litigation and public litigation activity by states for a lot of
different reasons and it, and it takes a lot of different forms, so. One form is the classic Texas sues the United
States and a bunch of other states pile in. And then a bunch of other states that disagree
pile in as amici on, on the other side or interveners. But you also see just straight up state amic-amicus
participation. Um, that has risen radically in the last decade
or so on questions like same-sex marriage, for instance. You get you know, state amici coming in on
both sides of questions like that. Um, you get efforts to the states to enforce
federal law in ways that may differ from the enforcement priorities of the federal government
itself. That would be the, the Arizona litigation
um, for example. Um, and then you also get state suits brought
based on state law itself. But where the intent is to achieve a settlement
that will, fun-furnish, basically a national in scope regulatory structure in lieu of federal
law that’s not getting made in Washington because of gridlock. And so, it takes all these different kinds
and I think we should try, try to keep all of them in mind. I’m gonna focus mostly on litigation by the
states against the federal government. Um, so let me advance two kind of propositions
um, that come out of my work with Maggie and then you know, Caitlin and Scott can pour
cold water all over them. Um, if they like. But the first proposition would be that there’s
a distinction between two different kinds of conflict in a federal system. Um, and they have, and these two different
kinds of conflict have different impacts on polarization. So, I’m thinking of the distinction between
vertical conflict, which I, by which I mean just conflict between the national government
and the states. The national government seeks to expand its
power, the states seek to limit it. So United States versus Lopez where we were
fighting about the scope of the commerce clause, um, would be a good example of that. And, and when you know, the states win a conflict
like that, they’re not really imposing any particular policy choice on other state governments,
right? If you strike down the national law, that
basically leaves the states free to do whatever they want in lieu of federal action. So that’s a vertical conflict. And I would say the vertical conflicts are
primarily about who decides on a given question. Will the states decide on their own and maybe
come to different views? Or will the federal government decide you
know, one decision for the nation? Then there are horizontal conflicts. And, and if you think about it, I think in
many ways the Constitution was meant to keep, even though we think about it as, as, as,
the federal provisions of the Constitution as limiting the power of the federal government,
I think the framers are as least as concerned with the need for a strong federal government
to keep a lid on horizontal conflicts among the states, or among groups of states who
think about the sectional conflicts between the north and the south, for instance. So a classic horizontal conflict would be
the one that resulted in the fugitive slave law, where one power groups of sta- group
of states is able to use the federal government as an instrument to impose their preferences
on another group of states that disagrees. Right? And so these horizontal conflicts are not
so much fights about who decides, the, they want the federal government to decide. It’s really a fight a-among different coalitions
of states about what the content of federal policy will be. Okay? Um, and I think these different kinds of conflict
have different impacts on polarization. So, vertical disputes. If the states win a vertical dispute and say
the federal government can’t make one decision for the whole country about this or that,
that leads the questions open for the states to go a different way. And that may, uh, that allows the states to
serve as a, as a safety valve for political polarization, right? We can agree to disagree because in our own
home states we’ll be able to implement the policy that a, that a solid majority thinks
is right. Um, I think horizontal conflicts on the other
hand are a means of just participating in polarization. So I, I think about the cl- the successive
waves of Clean Air Act litigation. So the blue states sue in Massachusetts versus
EPA to say that the Clean Air Act requires the EPA to regulate you know, greenhouse gases. They are trying to you know, not say the,
the state should be able to make their own decision about how to regulate the environment,
they want the EPA to regulate for everyone in, in a more aggressive fashion. And then you have the states that challenge
the Clean Coal Plan. The red states, um, that say no, the Clean
Air Act, you know, forbids this sort of environmental regulation. But again, they’re not saying we should be
allowed to go our own way, we’re saying the content of national e-e-environmental policy
should be this. Right? So these suits by state governments are just
an instrument of polarization. It’s just one more arena in which polarization
plays out. And the, so the proposition that I would you
know, tentatively suggest is that, from the standpoint of the system as whole, these vertical
disputes are more worthwhile than the horizontal ones. That if you’re worried about preserving the
ability of federalism to act as a mitigating factor for polarization, then you should like
these vertical cases where we’re trying to make sure that the states have the right to
go their own way and you should be skeptical of the horizontal cases where the states are
just participating in a polarized debate about what federal policy should be, all right? So that’s one proposition. The second proposition is about the relationship
of federalism to separation of powers. Um, and my former students in the audience
will recall that I’m not really capable of laying out a clean principle like vertical
good, horizontal bad, um, without immediately fuzzing it up. All right? And so that’s what I’m gonna do now. Separation of power seems horizontal, right? It’s about the horizontal relationship with
the branches of the federal government. Um, nobody’s saying for instance, in Massachu-
in, in, a um, in the Texas immigration case, for instance, that the federal government
lacks authority to decide what national policy shall be on immigration. I think they’re saying it wasn’t set in
the correct way. It should have been Congress rather than the
president. Or at least, they should have gone through
the APA of notice and comment. Right? But either way, there’s got to be a federal
policy, right? But federalism doesn’t quit when an issue
falls within Congress’ enumerative powers. All the way back to Gibbons versus Ogden,
Chief Justice Marshall recognized that the commerce clause conferred pretty broad authority
on the national government to regulate, but within that sphere of the national government’s
enumerative power, there were still important structural checks on national action. And those, those checks tended to, to act
in, in two ways. They both relied on the representation of
the states in Congress and because the states were representative, they had a voice, right? That’s one way in which they were protected. But the other, and probably more important
way in which they were protected was that it’s just hard to get anything done in Congress. Have you noticed? It’s, it’s, it’s hard to get anything through,
right? Um, so you could call that the procedural
safeguards of federalism. Because it’s so hard to get legislation through
Congress, what’s left when they can’t act is autonomy for the states. All right? Now, delegation in the modern administrative
state tends to circumvent all that, right? Um, it means that the statutory, because delegations
are so broad, then the congressional check isn’t really helping protect federalism any
more. But what has happened is its statutory limits
on administrative power have come to stand in for the old separation of powers principles
like the non-delegation doctrine. They’re proven nearly impossible to enforce. So two ways this happens. One is substantive review where the courts
hold the executive to the substantive constraints that Congress has built into the given statute. And then the other’s procedural review, so
n-notice in comment, for instance, which gives states a voice and it makes rules difficult
to enact. And so, I would submit to you that these,
these separation of powers claims, like the Texas immigration claim, um, that purport
to just be about how the federal government makes laws are actually terribly important
vertical checks as well, be, by making it more difficult to act, by making the federal
government jump through all the separation of powers hoops that is has to jump through,
before it can legislate. These suits as well are protecting the autonomy
of the states in important ways. So all this is just to say that separation
of powers questions like the challenge to Chevron, for instance, have an important federalism
conventions and states are likely to play a key role in litigating those questions. And, I think I’ll stop there. Okay, well, um, I’m not sure this is on. Can you all hear me? Yeah. Okay. Good. Um, first of all, let me say I’m delighted
to be here. Uh, I spent some time growing up in Arkansas
and although I’ve been in New York City for a long time, when you wanted to go to a really
big city, Little Rock would not do. Uh, Houston or Dallas was always the destination
of choice. So, it remains a sentimental favorite for
me. Um, as uh the justice noticed, I spent eight
years in the New York attorney general’s office, most of these as solicitor general of the
state. And I think one of the things that has been
remarkable to watch is the way in which states across the political aisle have really filled
the public law space over the intervening fifteen years or so. I think thing we would all agree on up here,
which is the proposition that states are significant actors in the public law space, there is not
much debate about that. Uh, they are alive and well, uh, in that arena
and I think it’s interesting to speculate a little bit about why that is, what’s behind
that and, and, what’s the impact of states’ really engaged presence uh, in the public
law space? So, say that 43 of them are elected, 27 Republicans
and 22 Democrats. Um, you also stole my line from attorney,
then-Attorney General uh, Abbot. I go into the office, I sue the federal government
and I go home. I would hazard a guess that there are perhaps
some blue state AGs that might say the same thing today. One of the, one of the ways in which you see
that play out is very basically if you look at the number of cases that states get granted
at the Supreme Court. A survey of cases, sur-petitions filed 2001
to 2009, four percent of the sur-petitions in paid cases are granted by the Supreme Court. Twenty-two percent of cases filed by states
are granted. So even on the numbers, the states have a
very active presence as parties. The participation in amicus briefs is off
the charts. Sometimes on the same side of the case and
often on opposite sides of cases. And you see the partisanship, I think, grow
over the last 15 years in those cases. If you go through the Supreme Court’s docket
in any given term, you will see quite a few cases and I would hazard a guess that almost
any case involving a public law issue where you have briefs filed by states on both sides
of the- be often joined by a number of, of fellow states as well. So, how did that come to be? I think one of the reasons is the point that
you made, which is many states now have these wonderful opportunities for folks like Scott
or myself to serve as solicitor general. Uh, it is an office that I think has really
grown in terms of uh, the opportunities that lawyers, uh, see that it provides. If you like uh, litigating and especially
if you like anything relating to federal courts or public policy sorts of issues, I think
it’s hard to find a more engaging job anywhere in the country, and I think my partner, Jim
Ho, who uh, uh, preceded you in this job would say the same thing. So, uh, I think one of the dynamics behind
that has been this real, uh, vein of opportunity that, that, states have provided to often
fairly junior lawyers. When I had the chance to serve as solicitor
general of the state of New York, I am sure I was way too young. Um, but it was, it was a really marvelous,
uh, opportunity. I think an additional reason, and this is
a little bit of an inside baseball point, perhaps, is that the National Association
of Attorneys General really has taken a, a leadership role in both coordinating advocacy
among states on both sides of the red-blue line. And also, in really helping states to improve
the quality of their advocacy before the Supreme Court. Both in terms of tutorials that they provide,
moot court program. So I think that has allowed states to be much
more confident and comfortable, playing in that arena. Uh, there are, is a tremendous amount of energy
that is spent by NAAG in that respect. I think another reason is that there are some
differences, and I’m speaking in broad brush strokes here, but probably some differences
between the state attorney general office and its federal counterparts. I think first of all, and Scott and I were
chatting a little bit about this before the program began. I think we agreed about this: a lot less bureaucracy. Um, if your boss wants to tell you about a
brief he or she wants to file, or you want to get approval, no paperwork involved, you
go down the hall and you talk to whoever is in the office a few doors down. And I think part of what that does is it,
um, allows for a much more entrepreneurial spirit among the states, whatever their political
leanings might be, uh, than you might have in the federal government. I think you should have also lots fewer people
who come into those offices as you do in the federal agencies and spend their entire careers. I think you have a lot less risk aversion,
um, among a number of those folks and I, you know, I think a lot of the attorneys general
themselves view themselves, in part, and a good bit of their remit under state law is
to serve as prosecutors and I think that also probably encourages thinking about that office
as a platform to bring uh, significant cases, um, whatever the policy goals are that you
might have in mind. Ernie talks about putting all of these cases
in the horizontal and the vertical uh, categories. And I think that’s a very useful construct. The vertical cases, uh, I think are, are maybe
the, the less controversial in the terms of the role of states. They certainly make for uh, interesting matters
and they’re doctrinally sometimes very significant. They also can make for, uh, curious positions. I remember when Kevin Newsome who now, recently,
uh, confirmed to the 5th Circuit, but then solicitor general of the state of Alabama,
filed a brief aligned with the state of California in Gonzales versus Raich, which is the medical
marijuana case. And his brief said, um, we don’t happen to
agree with the policy choice made by the state of California to legalize medical marijuana
um, but we certainly think the state of California, like the state of Alabama should be able to
make whatever choice it wishes, free from the dictates of the federal government. So those case, I think, um, the interests
of the states as institutions are fairly often aligned and uh, though the policy differences
may be significant in terms of what choice is made, I, I think there is often a fair
amount of unanimity there. I think the horizontal cases, uh, are, are
more uh, divisive as I think Ernie is suggesting, um, but I think it’s worth thinking about
those in two different categories. First of all, as Ernie elaborated on, you
have a lot of cases in which states are trying to influence the content of federal law. So just by way of example, um, you have a
tremendous amount of litigation in this space uh, over environmental policy. Massachusetts versus EPA is one example but
you also have litigation that lots of states engaged in led by the state of West Virginia
opposing the Obama administration’s Clean Power Plan. And I hazard to guess you will have a fair
amount more litigation um, as the Trump administration’s EPA uh, issues or scales on scales back on
regulation. So you have tremendous amount in that area
in particular. Immigration is another area where you see,
uh, a huge amount of this again, on both sides of the political aisle. I know you argued U.S. versus Texas, um, there’s
now obviously, uh, litigation pending um, maybe moot maybe not, I’ll guess we’ll see,
um, over the travel ban and uh, again, uh, the question there is both should the federal
government act and if the federal government acts, what should the policy choice, what
should the substantive content of the policy be? And states want to have a role in influencing
that. Uh, you see that as well on questions like
uh, uh, the transgender bathroom case, right? What does Title IX mean and what should the
federal government’s interpretation of that statute be? I-I guess my view on the propriety of that,
uh, is, is, perhaps a little different that Ernie’s. Um, you’re absolutely right, Ernie, that these
questions are often being resolved by executive action as opposed to by Congress. I think what that means is that the sorts
of political safeguards for states that our Constitution teaches our president that when
you have Congress debating an issue, are less available. And so, I think there’s an argument that when
states participate in litigating about those choices because the courts are the only institution
to which they have resort to participate, that that may provide some access to participation,
um, that we think is there by virtue of the structure, uh, of, of, Congress when it is
something that’s being decided by the legislative branch. I think what is even more interesting, though,
is a real swath of cases in which states are using their own laws to bring actions which
result in setting national policy. Either by the terms of a settlement on its
face or simply because um, once you have a handful of states litigating with a major
corporation over its practices, um, whatever comes out of that will end up being, uh, national
policy, sort of by default. Couple of those that are worth touching on,
I think, um, maybe the most well-known is the tobacco litigation. States brought these actions, uh, in order,
largely to recoup dollars spent on Medicaid funding. Um, that ended up really changing the face
of tobacco sales in the country, certainly also resulted in a significant transfer of
money. But there are a lot of other areas where states
have used their own states laws in this regard. State blue-sky laws. The securities laws are incredibly broad. Um, during the time that I was uh, in the
solicitor general’s office, for example, the state of New York used those laws to really
restructure the relationship between investment banks and scot, uh, stock analysts. Also looked at market timing, for example. Right now you see out of Massachusetts and
New York, uh, as well as a number of other states, um, litigation that’s underway against
Exxon, under the state’s blue-sky laws, arguing that Exxon did not fully disclose the risks
of climate change in its filings. Now whatever you think about the, the the
substance of those actions, one of the things that is really fascinating about it is you
have eleven AGs lined up with Massachusetts and New York and you have eleven AGs who filed
an amicus brief on the other side of that litigation saying the subpoenas that those
states had issued should not be enforced and were not appropriate and, and ran afoul of
the first amendment. Those cases are a little bit, I think, more
challenging if you are trying to justify them by allowing states to make their own policy
decisions because you have one state that is really or, or a coalition of states that
is acting in a way which can set the national policy agenda. And although these other states can come in
and file an amicus brief, their ability to really, uh, influence the course of that policy
and the way that it is, uh, uh, adjudicated is much more constrained. So I think those are a little bit more, little
bit more challenging. Um, I think it’s also interesting with those
cases to ask the question of whether or not the states themselves are really accountable
for the litigation choices that they make. Especially if you think that one of the virtues
of having state autonomy is that states are more accountable to the people than perhaps
the national government is. Um. I, I think there is a real question, it’s
an empirical question, I don’t know what the answer is, but there’s a real question about
whether or not voters pay a lot of attention to this sort of AG activism and whether or
not there is um, as meaningful a response at the ballot box to those kinds of decisions,
as you might see if a member of Congress, for example, made the same choice. It’s hard to tell what the impact of, for
example, media coverage when the state AG gets and says I filed a suit to do this, whether
it’s U.S. versus Texas or Massachusetts versus EPA. Um, but, I do think that, that probably for
a lot of AGs, um, what they may put before the voters first is actually the more workaday
consumer protection, uh, work and other kinds of efforts that are protective of the voters
in their state. Let me give you an example. I took a look this morning at the websites
of the Texas and New Jer-uh, sorry, Texas and New York attorneys general. Um, because I figured that it, it would be
some reasonable indication of what they thought was most on the minds of their voters in terms
of their own effort. And it was really striking because if you
compare the two websites, what they highlight is mostly the same. Um, both of them are involved in a 41-state
investigation of pharmaceutical companies that sell opioids. That’s an example where I think states are
aligned across the political spectrum in an effort to fill a gap they believe, uh, that
uh, the federal government has chosen not to uh, uh, fully engage in. Both websites Hurricane Harvey and FEMA assistance
not surprisingly for Texas, but on the New York Attorney General website uh, had a, had
a keep on eye on whether charitable giving for Hurricane Harvey is going to reputable
organizations or not. Both websites, Equifax, data breach, synthetic
drugs, some standard consumer protection points and one point of distinction: New York’s website
uh, points out the role of the New York AG in the DACA litigation, and the Texas AG’s
website points out the role of the Texas AG in a case I’m sure you’re very familiar with,
Scott, which is about, uh, Senate Bill 4, uh, which has to do with the, the duty of
Texas law enforcement. I assume it’s in response to sanctuary cities. Questions. But it is really remarkable that on all of
these topics, there is accord and then there is a point of disagreement. So while there may be, I think, some points
of real partisanship and divide, um, and also meaningful ways for state AGs to actually
influence the direction, not only of federal law but of national policy through state law. There is also, I think, lots of congruity
in terms of the issues that are most central in their eyes to their constituents. One last point I think is interesting, uh,
to keep an eye on and it’s this. Um, Ernie remarked that part of what may be
driving the increased engagement of states is a turn towards heavier reliance on unilateral
executive action. But what that means is that those questions
end up getting mediated through the courts. Because what states are doing is suing right? Whether they’re suing as plaintiffs or whether
they’re filing as amicus briefs on one side or the other, it’s the courts that have to
decide questions like is there standing? A question, I would add, which is, is particularly
um, uh, I think one that applies to both sides evenly. It’s a great example of what’s sauce for the
goose is sauce for the gander. Um, Massachusetts versus EPA which is a, a
case in which the Supreme Court said special solicitude to states, uh, to give them standing
in a case where, where private parties might well not have standing, was one that there
were a number of AG’s on the other side of. I took a look at the briefs in the U.S. versus
Texas case, um, which uh, uh Scott uh, argues. The U.S. says, gets its own point heading,
Massachusetts versus EPA does not support respondents and then you get a whole parade
of horrible about what would happen if the states could actually litigate. Texas on the other hand, um, cites Massachusetts
versus EPA and I realize this is a very lawyerly point to make, but just [inaudible]. It’s so central to Texas’s argument that uh,
it’s sprinkled throughout the brief, and, and Scott, reiterates that states are due
special solicitude. So, so you see this cutting in both directions,
um, which I think is, is true about a lot of these kinds of dynamics in these state
AG cases. But at the end of the day, it’s the courts
who are really making that choice and I think that’s something that has if not, so much
federalism implication, certainly very interesting separation of powers implications. Let me turn it over to you. Thank you very much. It’s an honor to be here in, uh, Houston amongst
so many friends. I just want to echo what Aaron said to kick
off the conference. Uh, our thoughts are with you here in Houston
after the hurricane. I know my boss, General Paxton, uh, Governor
Abbott and, and many people, Senators Cruz and Cornin have been doing all they can, uh,
to help the city and to see the city come together after such a, a tragedy, I, I think
is a testament to the spirit of this city. And so our thoughts are with you. Uh, I gotta tell ya, hearing about the s-solicitor
general’s office gig, ah, it’s exactly [crosstalk 00:42:11] It’s exactly, yeah, I, it’s, it’s,
I pinch myself when I go into work. I love my job. Uh, I get to stand at the podium and represent
27-million Texas. Uh, in an office that was created by Senator
Cornin, ah, one of my very good friends and close mentors. Late Greg Coleman was the first solicitor
general of Texas, uh, I count Ted Cruz and Jim Ho and the previous solicitors general
as my uh, friends, mentors, colleagues and, in so many ways, they established this office
for what it is in a very similar way, Caitlin, that you established the New York office for
what it is. We were talking earlier about the, the nature
of some of these cases and, and the cases on the timelines almost show the evolution
of the state solicitors general offices and we started this off with Ernie’s the-thesis
that you have this spike in state public law litigation. And I’m gonna get to why that maybe is happening
as a matter of the law and politics, but none of that can actually happen if you don’t have
an apparatus within the states to actually be thinking about this plaintiff’s side litigation. And I’ll tell ya, as a lawyer in state government,
it’s really easy when you’re in a big office that is involved in all sorts of litigation
that you’re on the defensive side getting sued all the time to be focused on the defensive
posture. But when you can pull out and think strategically
uh, not only about amicus briefs in a particular case but also what should we be challenging,
should we be moving resources into other venues? I think that allows the states to actually
think about when they should be litigating as plaintiffs. And, and so I think the phenomenon of state
solicitor general’s offices, besides upping the level of ad-advocacy in the appellate
courts for those states, most notably in the U.S. Supreme Court, I think uh, a collateral,
maybe unintended consequence, maybe intended, is that states have become much more savvy
in plotting strategically lawsuits. Because I, I’m sure this is in the New York
SG’s office too, but in the Texas SG’s office, we’re rarely involved in the trial court,
but there are some cases that we are absolutely involved in the trial court from day one,
when we know that it’s going to turn into a bigger appellate case or a more notable
public law case. Uh, and when you have these offices that have
been developed like that, not only can you attract certain individuals to come in and
head up these offices, but I mean I look throughout the room, I see alums from our office, I see
current lawyers in our office, I see a future lawyer in our office. And it’s really a, a testament to the people
who came before me in the Texas solicitor general’s office to be able to create an environment
for particularly younger lawyers to come in and get top-notch appellate experience but
also strategic litigation experience in some of these huge cases that you probably wouldn’t
even be working on in most law firms. And, and so I think in some ways the phenomenon
of state solicitors general, it, it, it’s snowballed and uh, and the, I think the exponential
growth on the plaintiff side of public law litigation by states is directly attributable
to that phenomenon of state solicitor general’s offices. So that’s point one. The second point I would just make, um, is,
and pushing back a little bit on what Ernie and, and Caitlyn have said, the, these horizontal
cases, or when states are interjecting themselves into litigation, uh, in an effort, I’ll say
set federal policy or, or, maybe push the scale one way or the other. At least from our perspective, we’ve viewed
it more that federal policy was already set. It, it, Congress had already provided in statutes
what the federal policy was, and through various usually unilateral executive actions, what
would occur was something that the state and other states thought, well wait, we thought
the rules were already set and now you’re changing them on us. And so then we would go to court to sue to
block the unilateral executive action. Not on the basis that we were trying to override,
wh- some sense of what the federal rule should or shouldn’t, er, what they, what they shouldn’t
be but rather that they were already established. And I’ll just walk through a few of our, you
know, bigger cases from the last few years to show that. I mean the first few are obviously a couple
EPA cases. And these are ones where the federal government
was in fact trying to use notice in comment rulemaking, as opposed to even more sub-formal
rules. But take the EPA Clean Power case. Uh, the West Virginia and Texas-led that Caitlin
mentioned. I mean, there what you were talking about
was the Obama administration invoked a little-known provision of the Clean Air Act, which is labeled
Section 111-D. And they used it for the first time in 25 years and for about the fifth time
ever, to rework the nation’s entire energy grid in a way that would effectively implement
a cap and trade policy through unilateral executive action when Congress specifically
rejected that statute. And so, that’s an example where the states
that already thought that that was set, that if Congress wanted to come and pass cap and
trade, that of course, was up to Congress. And if Congress had done it, the states would
have very little ground to challenge that. But instead, it was done with unilateral executive
action. Same with the EPA Waters of the United States
rule. This is a rule that would have granted the
EPA in some situations, regulatory authority over parcels of land that would have water
on them about once every one hundred years. It was a sweeping change in what EPA was going
to be able to regulate. Again, in a way that the states had thought
that the, the statute had already been set. So those are two cases in which the, the federal
government actually did try to use notice and comment rulemaking. In other words, we didn’t even have a procedural
objection, but there are also a host of other cases that were done, not even through notice
and comment rulemaking but through sub-formal rules. And what I mean by that is a guidance document. Or, a statement of policy. And to just put this in perspective how far
away we are from, you know, Article I legislation, Congress is supposed to create legislation. And, because the non-delegation doctrine essentially
doesn’t really provide m-, it provides a tiny amount of limit on what Congress can delegate. Congress has delegated large amounts of power
to agencies but in large part, it requires them to use notice and comment rulemaking
before they’re gonna make big policy shi-, policy shifts. But what we saw, particularly in the second
term of the Obama presidency was not even using notice and comment for some of these
big policy shifts. The biggest one would be DAPA and DACA, the
immigration programs that would have granted lawful presence, work authorization, the earned
income tax credit, social security, Medicare, even in some situations, a pathway to citizenship
for about five-million, almost fifty per- well, fifty percent of aliens who were, otherwise
unlawfully present in the country. And that’s a huge policy shift. It’s one of the biggest changes in immigration
policy in our nation’s history, and it was done through a DHS guidance memo. And so when the states brought that lawsuit
to challenge that, it wasn’t that we were trying to override, for instance, New York’s
policy view on what immigration was or wouldn’t be or California’s. It was we thought this was already set by
Congress. And so, by the states coming to court and
being able to enforce what Congress had already provided, this in some ways was really, as
Caitlin said, trying to make up for the lack of the political safeguards of federalism
that are contained by our members of Congress who are represented by through the legislative
process. DAPA and DACA wasn’t the only example of that,
though. The uh, Title IX gender identity case, there
was taking a view that the definition of gender identity, or sorry, the definition of sex
that had been held for decades to not include gender identity, all of a sudden included
that. Again, we’re talking about a statutory phrase
that the states, at least the states that brought suit, thought were settled. Uh, our EEOC case is similar in that regard. The Obama administration put out, again in
a sub-formal rule, saying that disparate impact liability in the employment context, would
ban all instance of a categorical prohibition on employed, on employing, uh, people that
had been convicted of a felony. Again, this is an example of something the
states had thought was already settled by statute. I could keep going through various examples
but, but the point is I, I think what was driving a lot of recent explosion of state
public law litigation, particularly in the last five years, is actually a use of unilateral
executive power in the domestic context that we really hadn’t seen before. And in some ways, you can kind of trace it
back to Massachusetts versus EPA, because that obviously would set the fact that states
have special solicitude in the standing analysis to get into court. But I, I’m not even sure in a lot of these
cases that we even needed special solicitude. In fact, that was one of our arguments in
the DAPA case was we really have standing in light of this, but we don’t need it. And so I don’t think you can necessarily even
trace it back to standing rules from the U.S. Supreme Court. I think it really is just a different view
on when executive power was going to be used and using it in a fundamentally new way. And, and to be fair to my friends on the left,
take the travel ban case. We filed a brief and for the arguments you
heard earlier that Brantley and Allison had made, there is in fact, capacious authority
for the president to actually implement this travel ban. But we’ll admit, picking six different countries
out and applying that power in that way? That is not something that a president has
done on that magnitude, I believe, uh, in selecting that many countries. And we believe it’s lawful, but in thinking
about the ways that executive power’s being used now, I think we are starting to see a
shift away from believing that Congress should be taking care of any of these issues. And instead, we’re all almost now, and I don’t
think this is a good thing, assuming that how these issues will be resolved is in the
courts in state versus federal litigation. Uh, and, and maybe, the left and the right
also need to have a very honest conversation about the scope of delegated power to the
executive branch. Uh, you know, on the left, if you don’t like
the travel ban, well maybe 1182-F needs to be reconsidered and amended. Maybe not. But, that, that’s a policy decision that really
should be made in Congress. And there’s all sorts of reasons why you could
think that Congress is the gridlock and the polarization, uh, is there but that is a feature,
not a bug of the system. And I’m not sure that it does our polity a
lot of good to be assuming that what is supposed to happen is every time one administration
of a party leaves office, another comes in that you’re going to face a barrage of lawsuits
from a different pocket of states that disagrees with that policy decision. I, I think the founders of our country would
not see that we are in the uh, state of affairs regarding our judiciary in that regard uh,
that they probably would have ever thought. Uh, so I started all this by saying that the,
the trend of solicitor general’s offices was a fantastic thing. It is. But I think this is one of the unintended
consequences of it, that uh, you’re getting savvy litigants and savvy litigants are going
to do exactly what they should do. And that’s, they’re gonna bring their A game
and they’re gonna do the best they can for their clients. So, in conclusion, I love my job but we’re
gonna continue to file briefs and I’m sure the state of New York is going to be doing
the same thing. Professor Young, any thoughts on what our
SGs have said? Well, I learn an immense amount every time
I talk to people who actually do this for a living. Um, I don’t mean to say either that there’s
a sharp line between horizontal and vertical cases. I think, I think it’s probably more useful
to think of most cases have both dimensions. But in any given situation, one may be more
prominent than the other. Um, the other thing is I, I don’t mean to
say that states can afford to forego a lot of these horizontal disputes given that that
is how the game is being played, any more than one party can just unilaterally say we
don’t like polarization so we’re not gonna play the game anymore, no-nobody can afford
to do that. I do think there’s a difference say, between
the bathrooms case where the question is, does title, d-does the statute even speak
to this question? And if the answer is no, then, it, it doesn’t
foreclose a state from going either way. And some but not all of the Clean Air Act,
um, phases where the dispute really is about you know, a rule that will bind everyone,
no matter which position you adopt, right? I think one, that one’s more horizontal. And I think the institutional interest of
the states, particularly if we care about using states as a safety valve for polarization,
ought to be to emphasize ways in which federal law can be argued to just not speak to a question. To, to leave it open for states where people
disagree. Um, the other thing I’d love to hear you two
talk a little more about is the accountability question. So AGs are elected, but it, but it’s hard
to say how much of a factor these cases are when people actually go to the polls. Um, I think it’s also, um, a question whether
these cases affect people in other states that don’t get to vote for the SG that’s bringing
the case, right? And, and if there’s anything to be done about
those kind of spillover mechanisms. Um and then, finally, I, I think in, in asking
about accountability how do states compare. There’s a compare to what dimension to it,
right? Which is how do states compare in accountability
to other actors that might bring similar cases like nongovernmental organizations. Like the ACLU is an example. Um, or the private bar bringing class action. So, you know, you guys are actually in the
politics of this, so I, I’d love to hear more about that. Uh, it might surprise the audience if I were
to tell you that there’s a lot of what my fellow panelists said that I agree with. Um, first of all Ernie, the, the point that
a lot of public law is being made right now by the executive as opposed to Congress means
that it is ripe with opportunities for litigation. Because when Congress decides to take something
up, unless you’re gonna argue that it, it lies outside the scope of the commerce power,
which is a hard row to hoe under current doctrine, there is not a lot of litigation to challenge
the decision itself. When it’s the executive that acts, whether
through some sort of notice and comment rulemaking that is subject to the procedural requirements
of the APA or outside of that, there are often many grounds on which you can challenge that
action. You can say that it doesn’t comply with the
terms of the statute, which, Scott, you were saying, characterizes a lot of litigation
over the past five years. And I would say characterized a lot of the
litigation during the tenure of the Bush administration brought by a number of blue state AGs. We may have different views about what statutes
mean and whether certain regulations comply with them or not. In addition, when the executive is acting
absent any clear anchor in the regulatory process, there are important questions about
whether that is something that the president is permitted to do. And so what I think will be really interesting
to watch is you know, there’s certainly an opportunity for, I think, congressional action
on a number of fronts given that you have the same party in control, both in Congress
and the White House. But time will tell whether that plays out. If that doesn’t happen, and the executive
branch acts whether through regulation or outside of the, of the confines of the APA
to change policies, there will be the same set of questions about whether those determinations
conform to the terms of the statute. Whether the procedural requirements of the
APA have been adhered to. Um, and I think that, that those cases will
unfold in much the same way that the litigation against the Obama administration initiatives
have unfolded as well. Another example of sauce for the goose and
sauce for the gander, I think. Yeah, no, I think you’re gonna see the, the
I mean the state playbook now of we have standing, there’s a notice and comment violation and
we need a nationwide injunction. I mean that, that’s gonna be run now. And how fast can we get to the courthouse? Y-yeah, I think a lot of times you’re gonna
be seeing that coming out. It’s probably like, just to go back to Massachusetts
versus EPA, to be completely fair in this issue. I mean, Texas was opposed to standing in Massachusetts
versus EPA- I do remember that. So we’ve been kinda volleying [crosstalk 01:00:36]
Having been on the other side. Ah, so the irony now, I mean I’m sure you’ve
felt this way, but now when we get a brief from say, California or New York in 2017,
citing Texas versus United States for the, the proposition of yes, you have standing
and yes, you can get a nationwide injunction when they were telling us in their own amicus
briefs no, we, in fact, couldn’t get that when we were bringing our own lawsuit. We said okay. We’re, we’re, we agree with you. Finally, we’re glad that we convinced you
now. Um, so it took a while but we’re on board. (laughter)
Again, perhaps less division than one might think. Exactly. On some issues. Some issues. Well, we’ve got about uh, fifteen minutes
left. Um, we can take some, some questions and uh-
If you don’t mind, I’m gonna ask the first one. This is something that I like having a couple
of SGs that I can pose this to. Uh, then we’ll get to some audience questions. I want, I want you to talk a little bit about
the cases you get to choose to bring versus the ones that come to you as SG and all three
of you have touched on this a little bit. I’ve always kind of felt sorry for Jim Ho
from when he was, ah, um, SG because Ted Cruz got Medellin, he got the Ten Commandments
case, which Abbot argued but he briefed and all these other cases where he got to argue
these red meat issues on the conservative red meat side. And Jim Ho shows up after Ted moves on to
greener pastures and what does Ho get but to defend UT’s affirmative action policy. (laughter)
Um, and uh, uh but he, but he did it dutifully like Kevin Bacon in A Few Good Men, I, like
who said uh, I su- I represent the government of the United States without passion or president,
passion or prejudice and my client has a case. And that’s the way uh, it seems to me, a good
S- SG handles cases that come at him or her. It’s a proud- It is a proud tradition. Um, Joe Greenhill had to defend Heman versus
Sweatt against Thurgood Marshall when he was back in the AG’s, off- off- office, uh, but
it’s not always how it works everywhere. The Obama administration uh refused to defend
DOMA, uh, Jerry Brown and Kamala Harris in California, refused to defend Prop 8 and a
lot of people would say that was a dereliction of duty and so I would, I’d like to ask uh,
y’all how did, how did those kinds of considerations come into play when you got to choose uh,
what cases you’re going to step up and defend, what cases you might not, what cases you’re
gonna take, what cases you’re going to let, let slide by. Well, in the New York office, I think state
is different, right? Um, as a function of the way that attorney
general has decided to structure that office. In the New York office, we handled all of
the appeals. That meant everything from a slip and fall
case on state property to significant and sometimes the most controversial cases, which
were cases about state statutes or state programs that were being challenged in the state high
court on constitutional or statutory grounds. Those tended to be very contentious. For example, education financing litigation. Uh, the death penalty. Um, and also did all of the um, we call it
affirmative litigation, plaintiff litigation, whatever name you want to put on it. The first case I argued in the Supreme Court
as solicitor general was actually a case about liquor and whether or not the states’ three-tier
uh, liquor distribution system was constitutional or unconstitutional. For all of you who order your wine online,
it turned out to be unconstitutional. But, but a range of cases and I think one
can actually take pride in standing up and saying that you represent the people of whether
it’s the United States, the state of New York. When I was in the DA’s office, uh, the uh,
uh, people of the state, of the city of New York, I think there’s real, real honor in
that. Yeah, I think there’s a couple different questions
there. One is just how does each solicitor general’s
office operate as far as selecting cases or taking them all? And the second question is more of how does
each particular attorney general view their duty to defend statutes or rules? In Texas, the SG’s office is very different
than New York. In New York, they handle all the appeals. In Texas, there are 18 lawyers in the Texas
SG’s office. There are what, probably about fifty-some
in New York-ish now? Yeah. Fifty. Uh, we only do a fraction of the appeals for
the state of Texas in the Texas AG’s office. Most of the appeals are handled by the different
litigating divisions within the AG’s office. And so, the resources in the Texas SG’s office
are directed specifically at the highest profile, biggest precedent-setting cases, and so we
have a lot of, we have free rein for the most part on what cases we’re selecting to actually
bring into the SG’s office. And we have a similar appeal memo process
to what the U.S. solicitor general’s office has to, to keep uh, a tabs on the docket and
also to select the cases that are coming in. And as far as the duty to defend, uh, I think
some of it also can, you can break that down into, well, even if the attorney general’s
office is not going to defend it, will they approve an outside counsel arrangement? Uh, and, and we’ve seen a few of those too,
so, off the top of my head, I can’t think of an example under Attorney General Paxton
where the state has categorically said we’re not going to defend something and not going
to even allow outside counsel to defend it, either. Which I think is an important distinction
from just shutting down and saying no, we’re not even going to court, you don’t get to
have that statute or rule. I can’t think any example either from Paxton
or Abbot and I, I’ve been, I probably think that’s the way, that’s the way you should
do it is you should take everything that comes in. But, um, the uh, let’s hear from the audience. Questions, please. I was very interested to hear from Professor
Young about the vertical between states and federal. And I think that’s the issue. That, uh, over the two centuries that our
country has started, uh, the states have gotten less and less power and the federal government
has gotten more and more power. Uh, and I would uh, with due respect to the
solicitor generals, on the panel, ah, I’m the head of an organization called Texas Constitutional
Enforcement. And I, we’re dedicated to the proposition,
uh, we do look at the 10th Amendment, uh, and we look at the rest of the Constitution
and we do not think that the Constitution delegated the power to be the final arbiter
of constitutional meaning to the federal government. Especially the judicial branch. We are not federal judicial supremacists. We believe our elected officials in Texas,
uh, should be the final arbiters of constitutional meaning. We believe s- our elected Supreme Court, our,
our uh, attorney general, our governor and our legislature should be doing that and we
should declare what constitutional meaning is and then insist that it be honored in but
in, in the background wall of our c- our, our, our Facebook page has a picture of the
guys at Goliad. And what we say is, uh, suing in federal court
is the Goliad approach to fighting for liberty. You surrender the decision about your fate
to the very tyrant you’re fighting, and then you get massacred. Uh-
We don’t get massacred. We’re winning!
(laughter) [crosstalk]
Not all the time. I, I’d like to see your batting average. But uh, anyway, what I wanted to find out-
Although I’ve seen him in court and he’s very good. (laughter)
Yes. But Professor Young, I, I’ll, I’ll ask you
and I’d love to hear from the rest of the panel. Uh, do you think we should defer to the Supreme
Court to be our supreme rulers or should we start declaring what constitutional meaning
is right here in Texas with our elected officials? I think the fear is always been that if the
buck doesn’t stop somewhere then you lose the guarantee of a peaceful resolution of
disputes, right? If there, if there’s no final arbiter, um,
no one, one court to rule them all, uh- (laughter) Then, then you don’t get one final answer
and the framers in the Federalist Papers were pretty clear that they thought those disputes
would be settled by force. And so that, that’s always been the assumption. Now, I’ve been doing some work on Europe and
the operation of the courts systems in the European Union and the one thing that I think
a lot of people don’t recognize is that they don’t have one court to rule them all in the
same way we do, even on questions of European laws. So for instance, the German Constitutional
Court has insisted that they are the final arbiter on whether European law, you know,
coming out of Brussels is consistent with European Union’s, you know, founding treaties
and therefore can validly pre-empt German law. And they say that the German constitution
requires them to play that role. Um, and, and some of the constitutional courts
in Europe also take the view that sta-, that their members state constitutions are supreme
over European law. That, that, that, we assume under the supremacy
clause that every kind of federal law is supreme over every kind of state law. Where, you know, a federal regulation can
trump the state constitution. They, they do, they manage to have a different
view on these foundational questions and last time I checked, the sky had not fallen in
Europe. Right? Um, so it is possible to run a, at least quasi-federal
system on a different set of principles. Now I think the way they get by, though, is
that there is so much mutual deference and accommodation that these questions never are
allowed to actually come to a head. Right? Um, and so I don’t know if our legal culture
is in the same place. I think these questions would be pushed to
their ultimate resolution and you can’t have a, if you, you think the questions are going
to go all the way, then you need to have a plan for how you’re going to resolve it ultimately,
and get one final say. They can avoid that because they have, they’ve
preserved a sense of res- of legal and, and political restraint in some ways that we just
don’t have right now. So I don- I think it’s actually more possible
for your world to exist than, than most people would say. Um, but I’m not sure it can exist under our
current state of politics. Good afternoon. I’m, my name is Mark Kabalan and my question
is to be narrowed to the, more of the plaintiff’s side of the AG’s work, and that is what do
you, what’s the calculus that you use when you might have all three aligned, the legislature,
the governor and the AG, solicitor general, versus when the A, uh, AG might be polar opposite
of the legislature and the governor when you’re going to pursue a case? An elective case? I’ll give you an example of that if, if I
can. Um, when was state SG there was a lot of thinking
that the U.S. Supreme Court was doing in the 11th Amendment arena and the extent to which
states were amenable to lawsuits for damages. Um, and we looked very closely at those cases
before deciding whether there was any room to participate as an amicus because my client
was the governor. And the state agencies were my client and
so if they had exposure, liability, cases in the pipeline, um, that mattered. Uh, now there are a lot of these cases where
I think there’s not such a direct conflict that might arise. Um, but uh, that was the way we navigated
it. I don’t know what your experience is, Scott. Yeah, I mean at least in Texas, the Texas
attorney general’s office, it’s pretty settled, has the authority to represent the state. And obviously in weigh when to bring a lawsuit,
you’re gonna consider, and the attorney general considers the, like all factors that even
if you would have the power, it doesn’t necessarily mean you’re bringing the lawsuit. But at the end of the day, in Texas the buck
stops with the attorney general in the determination uh, as far as that. So yeah, there, there could be different uh
views to whether a lawsuit should be brought and maybe some legislators or a governor occasionally
can have different views on this but, but by and large, at least in the current state
of Texas politics, where you have one political party that is controlling each of the branches,
there really aren’t disagreements of that sort. But I know from talking to my fellow SGs that
are in other states where the governorship is held by the opposing party that the SG,
that, they, there are disputes over that and sometimes they’ve even gotten into litigation. Yeah, that’s right. And Colorado’s a great example of that. And when I was SG, you know, the AG was uh,
a Democrat and my boss and the governor was a Republican. So it was divided that way and, and we worked
through those issues and worked closely with his counsel. We might have time for one more if there is
another one. Otherwise, here we go. Uh, I had a question about the playbook you
mentioned that includes nationwide injunctions. Yeah, it’s no secret anymore. (laughter)
My, I’m a patent lawyer so I’m ignorant about all this stuff. My impression is that’s a growing thing and
it falls under what Professor Young called sort of a horizontal conflict but maybe in
judicial federalism as opposed to sort of legislative and state federalism. So number one, is, is that a growing thing
or is it my imagination from some of the recent big picture cases where people who were on
the right seemed to be very happy when they got in on DAPA and then very unhappy and complaining
about judicial overreach when it happened in context of the travel ban. And number two, how should we think about
that as federal society types both in terms of AG’s and SG’s offices seeking those and
judiciary members granting them? I can give you a very direct example. We filled amicus briefs supporting the administration
in the travel ban case, but we argued the ban itself was substantively lawful. We did not dispute the state’s standing. We did not dispute that it would be proper
to issue a nationwide injunction. And so I think this is where, you know, rather
than sit here and volley back and forth between the states who have standing, I think almost
every state has now signed onto the proposition that yes, states should have special solicitude. And you can say that is a unique rule for
states, or it’s just recognizing that there is something different about a sovereign state
in our system that you could have concrete injuries as a state that no other party could. And so I think, you know, most of the debates
at least at the state level, and, and the United States DOJ would dispute this, but
I think, by and large, it’s now most states have settled on the fact that yes, you can
have special solicitude and yes, you can get nationwide injunctions and the debate among
the states then is largely about is the policy itself lawful. Makes sense. Okay. Well, let’s hear it for our three panelists. [applause]
[inaudible] Hi, my name is Lisa Ezell, I’m the vice-president
for the Federalist Society’s lower east chapters and before we conclude, I would be remiss
if I didn’t use this opportunity to thank our Houston chapter here for hosting us this
weekend. Um, we are so thrilled that we could come
here after the last several weeks here and I want to express my deep uh, gratitude to
our leadership in Houston. Um, especially Aaron Streett, who um, when
I called him earlier this year, to ask him not only to, to take the realms of this conference
but also to lead the Houston chapter after some leadership changes. Um, so great, I’m so grateful for you for
all of your leadership here this year. Um, also want to recognize the rest of the
team who helped plan the conference this weekend. Marcella Burke, Catherine Ashbach, James Lloyd,
Will Peterson, Charles Eskridge, Leif Olsen, Michelle Stratton and um, the rest of the
Houston uh, steering committee. Thank you so much for your hard work. I think this was a great success, um, we’re
so, again, so happy that we could be here and have a very successful um, third annual
conference here in Texas. So, thanks to all the panelists. I think was um, thanks to our volunteers. I want to thank Sarah Landeene who um, was
very patient in trying to contact the Houstonian to make sure the doors would be open for us
to host a, host us this weekend and uh, we’re grateful to the staff of the Houstonian, who,
we were the first group back in the hotel after the hurricane, so we’re very grateful
for how hard they worked to, to have this um, conference facility operational for all
us. So with that, um, I hate to be the um, what’s
keeping everyone from the closing reception and an open bar, so thank you again. Um, and we look forward to some more hospitality
and fellowship outside.

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