Why It’s So Easy to Hate Ken Paxton

The Texas Attorney General tried to kill the Affordable Care Act and fix the election for Trump. He’s also been accused of campaign finance and securities law violations. But his real problem is that he’s a jackass.

We’ve all had a neighbor like Texas Attorney General Ken Paxton. He lets his Rottweiler run into your yard and blames your two-year-old when it bites her. He calls the police on your son’s Saturday afternoon birthday party, he sets off fireworks for three straight days over Fourth of July weekend, he pees off his front porch and sues for defamation when you file a complaint of your own.

As the chief law officer of the second most populous state, Paxton is trying desperately to be That Guy making life miserable for the entire nation. He has sued the federal government demanding an end to the Deferred Action for Childhood Arrivals program, sought to block limits on coal-mine pollution of waterways, demanded an end to President Biden’s moratorium on deportations, sought to override Biden’s order canceling the Keystone Pipeline, demanded reversal of the administration’s moratorium on new oil and gas leases on public lands, and even tried to block Biden from creating a federal “advisory group” to assess the social costs of pollution. “By mid-April of this year,” CNN reported this week, “Paxton had already filed eight lawsuits against the Democratic president.” He is on pace to match his record under President Barack Obama, about whom his wife used to perform a tuneful air: “I’m a pistol-packing mama and my husband sues Obama.”

In short, Paxton is the guy who unites his neighbors in a shared hope that he will get what’s coming to him. Usually, those hopes are disappointed.

There’s some chance this time, however, that prayers will be answered. Paxton has already been kicked around publicly by the courts; now he is facing state and federal corruption probes, Texas Bar proceedings for alleged legal-ethics violations, and (perhaps worst of all) he has now begun to reek of political vulnerability.

Paxton’s record as a what I will call, for lack of a better term, “lawyer” is distinctly mixed. In the past year, Paxton’s two highest-profile lawsuits turned out badly for him. In November, he asked the Supreme Court to invalidate the entire Affordable Care Act on the grounds that it used to have an individual mandate but doesn’t anymore. In January, he went directly to the Supreme Court to ask the Justices to install Donald Trump for a second term.

In both cases, the Roberts Court sent him packing under the same rationale—Paxton and Texas, the Justices wrote, lack “standing to sue.” Standing is what I call the “what the hell business is it of yours?” principle. In order to get into federal court, a party has to do more than come up with a theory about why someone else has broken the law; the party has to show that the violation of law hurt him or her in particular. So what if the fence is an inch too high? Does it cut off your view, or shade your garden, or do anything at all to you? Unlike in politics, in federal courts hating your neighbor isn’t good enough; you must also suffer a “concrete and particularized” injury.

Particularization hasn’t gone so well for Paxton lately. His attempt to overturn the election was based on a claim that the state governments in four states carried by Biden had not followed their state constitutions and laws in conducting their presidential elections—the equivalent, in other words, of dragging up a lawn chair to root for one side or another in a neighbor’s marital spat. This novel theory was met with a cold shoulder: “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections,” the court wrote in a brief order, using legal terms that mean, “Go back inside, hoss.”

Then the Obamacare challenge was tossed because, well, Paxton also hadn’t alleged any injury that made any sense.

To understand why, begin with the central issue of the only serious challenge to the ACA, National Federation of Independent Business v. Sebelius. As enacted, the ACA required every taxpayer to maintain some version of minimum health insurance for the household—either employer-provided insurance, an individual policy, or coverage by a government program like Medicare or Medicaid. Failure to maintain coverage could be punished by a reduction in the taxpayer’s income-tax refund. This, a legion of earnest law professors and politicians arose from nowhere to assure us, was the absolute essence of tyranny, North Korean in its totalitarian sweep. A government that could “penalize” us for not having insurance would soon progress to requiring daily portions of leafy vegetables. The court’s rejection of that claim infuriated the Right: Chief Justice John Roberts wrote in the controlling opinion that the “mandate” was unconstitutional as a regulation of commerce—but was constitutional as a tax, because Congress’s taxing power is broad.

In 2016, Republicans took over Congress and the White House. They couldn’t find a replacement for the ACA (“Nobody knew health care could be so complicated,” then-President Trump whined), but in a fit of pique they repealed the “mandate.” All that was left on the books was a bare command that taxpayers maintain insurance. If they did not, well, then, the federal government would do to them exactly… nothing.

All of a sudden, a $0 mandate became, in the right-wing echo chamber, even more tyrannical than one that actually cost money. Having eliminated the mandate, Paxton’s office explained, the federal government could not maintain a health-insurance scheme that had originally depended on the mandate, because without the mandate the scheme wouldn’t work.

This month, the Court’s majority asked again what in Sam Hill about the lack of mandate is hurting Texas so gosh-darn much—the answer being, well, that it meant the ACA couldn’t possibly work and yet, annoyingly enough, was working.

Texas complained that because the program worked, many Texans had obtained health insurance who would otherwise not have done so; that because all these new people were now covered, the state had to process their paperwork and (if they were now on Medicaid) cover a small part of their medical costs.

In an opinion by Justice Stephen Breyer, the majority wrote, “It would require far stronger evidence than the States have offered here to support their counterintuitive theory of standing.” This is pretty harsh language for the mild-mannered Breyer; even worse, Paxton’s high-profile conservative agenda lawsuit lost the votes of the Court’s liberals, of the Chief Justice—and of far-right Justices Clarence Thomas, Brett Kavanaugh, and Amy Barrett.

If we take one step back from Paxton’s allegations, we can note that his claim was not just invalid but positively vile. The injury to Texas, Paxton alleged, was that… some of its people who didn’t have health insurance now had it. Some children were getting immunizations; some older patients were getting blood pressure medicine; some diabetics had a chance to get their insulin.

Not since the millers of Coketown in Charles Dickens’s Hard Times had a seemingly powerful party revealed itself to be so easily damaged or destroyed. “Surely there never was such fragile china-ware as that of which the millers of Coketown were made,” Dickens noted of Victorian industrialists’ resistance to safety and health regulation. “Handle them never so lightly, and they fell to pieces with such ease that you might suspect them of having been flawed before.”

And of course, Ken Paxton was gravely flawed even before the failure of his attempts to take over national elections and the American health-care system. Only six months after taking office in 2015 as Texas’s attorney general, he was indicted by a state grand jury on felony securities-fraud charges. He has tap-danced so furiously that this case still has not come to trial—but it has not gone away, either.

Last October, the seven top officials in Paxton’s office filed a joint whistle-blower complaint alleging that he had engaged in bribery and abuse of power on behalf of a wealthy campaign donor. Now he is facing federal investigation on those charges.

Paxton further seems to be running some risk of what we shall call the Full Giuliani—bar discipline, and possible revocation of his license to practice, because of his deceptive conduct in the 2020 election challenge. “Knowing that the national election had NOT been rigged or stolen,” a Democratic activist charged in a complaint to the Texas State Bar, “he acted in a way to stoke those baseless conspiracy theories nationwide.” The Bar initially dismissed the complaint—but it was revived this month by its Board of Disciplinary Appeals.

Paxton is, in short, probably a crook; likely a shyster; definitely an extremist; and, generally, a nasty piece of work.

These qualities, of course, aren’t necessarily handicaps in Texas politics. But something else is: political weakness. Paxton’s fellow Republicans apparently have diagnosed him with this near-fatal condition and are circling in hopes of feasting on his carcass. George P. Bush, son of former Florida Governor Jeb Bush, is challenging Paxton, apparently from the right, in the Republican primary. And last month, Texas Supreme Court Justice Eva Guzman—a Republican who is the first Latina to serve on the state high court, who is based in populous Harris County, and who won 60 percent of the statewide vote in her most recent Republican primary—resigned from the bench to run against Paxton as well.

Paxton has survived a lot of setbacks so far; maybe he will tap-dance past the state and federal courts, the state bar, and the Republican primary.

But even if he does, he now has perhaps his last chance on earth to learn a useful lesson: just because you can be That Guy doesn’t mean you ought to.

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Garrett Epps

Garrett Epps is legal affairs editor of the Washington Monthly. He has taught constitutional law at American University, the University of Baltimore, Boston College, Duke, and the University of Oregon. He is the author of American Epic: Reading the U.S. Constitution.