Legal Experts Say Ken Paxton Is Following Trump's Lead By Shutting Out Congressional Investigations.

May 17, 2019

Texas Attorney General Ken Paxton is refusing to cooperate with two separate congressional investigations, arguing Congress lacks the authority to investigate the state. It’s a move that constitutional law experts say is both unprecedented and is likely inspired by President Trump’s recent refusals to comply with congressional investigations.

"I think that’s a troubling reflection of the time we are in," said Stephen Vladeck, a professor at the University of Texas School of Law. "It’s not surprising that state attorneys general like Ken Paxton are looking at the president and basically following his lead."

According to a press release from the attorney general's office Thursday, Paxton characterized calls by two subcommittees of the U.S. House for documents as an attempt to assert "control over core state functions," arguing that it violated "constitutional principles of federalism." The subcommittees are investigating concerns over discrimination against same-sex couples in Texas and child welfare funding.

Last month, Paxton also refused to hand over documents related to Texas’ effort to remove noncitizens from its voter rolls earlier this year to the U.S. House Committee on Oversight and Reform.

"What we are seeing now on the federal level and now on the state level, at least in Texas, is a sense that you do not have to comply with congressional investigations – that you can simply just say, 'No I don’t feel like it,'" said Jessica Levinson, a professor at Loyola Law School in Los Angeles focusing on election law and constitutional law. "And that is unprecedented."

Levinson said it is not uncommon for entities under congressional investigation to fight back and eventually compromise, but is uncommon to see states "essentially flout" congressional oversight.

"Fights between Congress and the entities or people they are investigating are very common," she said. "But stonewalling Congress completely – I would say that feels like a new trend to me."

Vladeck said he thinks Trump’s clashes with Congress have created "a new era" for congressional investigations, unless the U.S. Supreme Court steps in.

"The president has, for better or for worse, created space for state attorneys general, for private corporations, for anyone who is the subject of a congressional investigation, to resist – not on the grounds that they have some special privilege or immunity – but rather to challenge the investigation on its face," he said.

Legal experts say they also believe Paxton’s argument is on shaky ground. Vladeck said Congress’ "power of inquiry has never been limited to the federal executive branch," and has often investigated states.

"States are very guarded about trying to protect themselves from federal overreach, but if, for instance, Congress feels there has been a violation of a federal statute or the federal constitution, it is within their rights to investigate that," Levinson said.

Because this is all new legal territory, Levinson said, it’s unclear what will happen next. She said, ultimately, Congress has the power to hold Paxton in contempt – or take the issue to court.

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