SCOTT SIMON, HOST:
Possibly no state's politics will change more next year than Texas. For nearly three decades, Republicans won every single statewide race there. But this year, Democrats swept those statewide races, including one with huge national implications for the federal courts - Texas attorney general. Stephen Vladeck is a constitutional law expert and a professor at Georgetown University's Law Center, and he formerly taught at the University of Texas School of Law in Austin. Professor, thanks so much for being with us.
STEPHEN VLADECK: Thanks for having me, Scott.
SIMON: How did it come to be that the Texas attorney general's office has such a - I think I can refer to what is an outsized role in shaping national policy?
VLADECK: Yeah. It really was the brainchild of then-Attorney General Greg Abbott about 13 or 14 years ago, where he really viewed his job, as he put it, as waking up in the morning, going to work and suing the Obama administration. And that started this trend of the Texas attorney general basically becoming the lawyer general for right-wing litigants - for red states - either to challenge Democratic presidents or to challenge blue-state policies they didn't like. And that attracted many, many cases to Texas. So it really is an outsized role that Texas has been playing for more than a decade now.
SIMON: What high-profile cases would you point to in particular?
VLADECK: Well, you know, Texas has been the plaintiff in some of the biggest challenges to Obama- and Biden-era immigration policies. The DACA case started in Texas, the Remain in Mexico case. You know, it's not just that the attorney general of Texas has been spearheading these cases. It's also that this has basically brought other parties - private parties, other states - to try bringing their cases in Texas. Even the Trump administration has brought a series of cases about nationwide policies in Texas because the Texas attorney general's office has shown itself to be so solicitous. It's going to be a pretty radical shift come January.
SIMON: How so? How do you foresee that?
VLADECK: The new incoming attorney general, Nathan Johnson, has already said he's going to abandon Texas' position in some of these cases. I suspect he'll drop some of the cases that Texas is currently bringing, including, just to take one example, efforts to challenge telehealth provider shield laws in blue states and to try to prevent doctors from prescribing mifepristone, an abortion-related drug, to folks in states where it's not legal. Texas might drop its litigation continuing to object to any kind of residual status for DACA recipients, the Obama-era immigration program.
And we might even see Texas use the powers that Republican attorneys general have harnessed over the last 13 years in the other direction, perhaps to go after private entities - Elon Musk obviously has a huge corporate home in Texas - and maybe even to sue Republican presidents. I mean, it would be, I think, not beyond the realm of possibility to have a Texas-versus-United States lawsuit that's now blue Texas against the Trump administration.
SIMON: Aren't federal courts in Texas in the Fifth Judicial Circuit still very friendly to conservative viewpoints?
VLADECK: They are. And so, you know, I think it won't be quite a mirror image of what we saw under Attorney General Abbott and Attorney General Paxton because you still have the reality that the federal appeals court in Texas is deeply conservative, probably more conservative than the U.S. Supreme Court. But I think just the fact that you no longer have Texas leading the way in sort of right-coded nationwide litigation - I think it's going to create something of a vacuum. And it's not clear that there are other states that have the same political structure, that have the same interests, that have the same resources to fill the gap that losing the Texas attorney general's office will create.
SIMON: Louisiana? Mississippi?
VLADECK: Mississippi, of course, already has slightly more complicated politics, as we saw, having just elected Senator-elect Colom. Louisiana's politics have always been a little more complicated in this space. I don't doubt that they'll try in some cases. But, you know, everything's bigger in Texas. And I think it's really hard to see from the outside just how much that particular office staffed up and, you know, was given resources to basically bring nationwide litigation on a regular basis. It's hard to imagine another red state, at least, that's going to have similar capacity without a substantial investment that would have to start, you know, right away.
SIMON: Let me ask you a Washington, D.C. question, if I might. It's the first time President Trump will face Democrats in control of both chambers of Congress. Democrats made a campaign pledge to investigate alleged corruption. Are they going to face roadblocks?
VLADECK: Well, I think there's no question that we'll see roadblocks. I mean, the Trump administration has already been putting out these memoranda by the Justice Department's Office of Legal Counsel, trying to identify new grounds on which executive privilege could be asserted to resist those kinds of investigations and inquiries from Congress - even perhaps for third parties to resist those kinds of investigations.
You know, we've seen already this week letters from the White House counsel and from the U.S. attorney in the Southern District of Texas, basically sort of lecturing members of Congress about the limits on their constitutional investigative powers. So I think there's no question, Scott, that, you know, whatever role Texas is going to play, whatever role Congress is going to play, the administration is going to be subject to a lot more litigation and oversight in the next two years. How much of that succeeds, I think, is going to be very much up to the courts and to the Supreme Court in the final analysis.
SIMON: Stephen Vladeck, professor at Georgetown University's Law Center. Thanks so much for being with us.
VLADECK: Thank you.
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