Paxton Fights Congress for Texas’ Core Authority, ‘The Fabric of our System of Dual Sovereignty’ 

“If I were a betting man, I’d take Texas and give two touchdowns on this one.”

AUSTIN, Texas (Texas Insider Report) — In what is sure to be two closely watched cases, the State of Texas and its Attorney General Ken Paxton asserted its sovereign immunity powers against Congress last week by writing to the Democrat chairmen of two separate U.S. House of Representatives Committees claiming that the state has no obligation to comply with their Congressional Investigative demands.

Texas is objecting to the Democrats’ requests for documents probing the state’s efforts to clean up its voter rolls – as well as a request for documents that detail the state’s effort to protect faith-based adoption and foster care providers against an Obama-era rule about working with same-sex couples.

In its letters, Attorney General Ken Paxton’s office says that as a state with sovereign powers under the Constitution, Texas can’t be treated like a federal agency or Cabinet Secretary who can be compelled to comply.

“Texas does not draw its authority from the United States or the United States Constitution, but (rather) from its status as a dual sovereign within the union,” wrote Jeffrey C. Mateer, first assistant attorney general in a letter last Monday to the House Oversight & Reform Committee.

In the first new case, the U.S. House is seeking to investigate Texas’ announcement earlier this year stating that it had found approximately 95,000 names on its voter rolls who were suspected of being non-citizens.

The U.S. Supreme Court has held previously that while Congress does have broad investigative powers in certain instances, they must be tethered to some lawmaking activity, either current or prospective.

In the case of the voting inquiry, Mr. Mateer said there is no right for non-citizens to vote, so there is nothing Congress could legislate over.

And separately, the House Ways & Means Committee is seeking to investigate a request Texas made to the Health & Human Services Department last year in which the state asked to be freed from various Obama-era rules that would denying assistance to states which certify faith-based adoption, or foster parent organizations, that don’t work with same-sex couples.

The clashes have the potential to break new legal ground.

Ken Cuccinelli, a former Republican Attorney General for the state of Virginia, said late last week that he never encountered such a situation during his time in office, noting that two constitutional principles are at stake:

  1. The Sovereignty of States, and
  2. The Supremacy Clause, which gives the federal government an edge in clashes with states.

Cuccinelli said Texas makes a strong case in its letters for why it will prevail.

“Congress doesn’t get to do oversight over states, period. Nor can they compel action by state officers,” he said.

“If I were a betting man, I’d take Texas and give two touchdowns on this one.”

Texas’ Secretary of State Office, which plays a key role in overseeing the the state’s voter rolls, notified Texas’ 254 Counties earlier this year that they should begin to purge the identified names, which drew a lawsuit from Hispanic and voters rights groups in the state.

The sides reached a settlement last month.

Secretary of State Whitley Settles Voter Registration List Maintenance Case

Mr. Mateer, in his letters, said the committees are entitled to ask federal agencies for information they may have, including communications with Texas.

And he also said they are entitled to any documents from Texas that a citizen would be able to get through the state’s open records laws.

But Mr. Mateer’s letter to the House Ways & Means Committee last Wednesday rebuffs its request for information, saying the state wouldn’t stand to be treated like a “subdivision of the federal government or a private citizen.”

“Granting Congress the power to exercise ‘oversight’ over the constitutional officers of a state engaged in the lawful exercise of that state’s core authority would undermine the fabric of our system of dual sovereignty,” Mr. Mateer wrote.

Josh Blackman, a professor at the South Texas College of Law in Houston, says that prior Supreme Court cases have held that  Congress  cannot “commandeer” a state to enact laws, nor can it force state officials to perform tasks such as run background checks on firearms purchases.

“Congress can’t give orders pursuant to legislative powers to tell states what to do,” said Blackman.

But investigating states is not new to Congress, and the situation could get more complicated if either committee feels strongly enough to approve subpoenas.

In recent years, the same House Oversight & Government Reform Committee subcommittee that is looking into the Texas voting issue – which is chaired by Maryland Democrat Cong. Jamie Raskin – also investigated a drinking water problem in Flint, Michigan. The committee sparred with then-Gov. Rick Snyder over similar requests to access state documents in that case.

The committee also investigated Oregon’s implementation of the state’s Obamacare website, eventually finding enough fault to ask for criminal charges to be brought against state officials.

But Texas Attorney General Ken Paxton’s Office – by questioning the validity of the committees’ inquiries based upon legislative impact and purpose – may have identified a significant enough defense that is more in line with previous U.S. Supreme Court decisions.

The post Paxton Fights Congress for Texas’ Core Authority, ‘The Fabric of our System of Dual Sovereignty’  appeared first on Texas Insider.

Source: Texas Politics

Paxton Fights Congress for Texas’ Core Authority, ‘The Fabric of our System of Dual Sovereignty’ 

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