State AGs Fighting for the Right to Discriminate

A Texas case before the 5^th Circuit Court of Appeals could be the latest fight to allow states to discriminate against their residents regardless of federal oversight.

There’s an old internet argument that goes like this: the Civil War was fought over states’ rights. And then the other person says: right to do what? The answer is obviously: to treat some people as less deserving of equality than others.

It’s worth invoking this Lost Cause nonsense when looking at the dedicated attack on federalism by attorneys general in states like Louisiana, Texas, and Mississippi. Federalism is the idea that the federal government has a broad right to overrule regional governments on constitutional matters. States are, theoretically, not able to do things like wage a border war or violate constitutional protections.

This becomes a problem for states that very much want to keep doing things the federal government says they aren’t allowed to. One way to change this is to fight the oversight through the court system in hopes of using the conservative majority U.S. Supreme Court to strike down federal oversight on a number of issues, which brings us to Texas.

For 13 years, Texas has been locked in a legal battle with federal judiciary over its foster system. In brief, Texas’s foster system is a broken mess that involves insufficient care, licensed facilities trafficking child pornography of kids staying there, staff abuse, and woeful investigation by state law enforcement. For the last five years, the federal government and these children’s interests have been overseen by U.S. District Court Judge Janis Jack, who has castigated and fined the state repeatedly for failures.

Now, the matter is before the 5^th Circuit Court of Appeals, which has become the home field for stripping rights from people. The fall of Roe v. Wade picked up steam there, and currently the go-to place for anti-federalism attorneys general.

On Monday, the state will argue that Judge Jack should be taken off the case because of federal overreach. They will claim that she has no right to punish Texas for, say, having a foster child’s jaw broken by a staff member and then the state not doing anything about it. If the court agrees, and so does the U.S. Supreme Court, then state agencies will become instruments of sovereign state governments, free of federal checks or balances.

Louisiana’s Attorney General Liz Murrill has been very open about this type of goal. She has filed numerous lawsuits against the Biden Administration. That’s not particularly noteworthy in itself, but her reasoning, joined by Mississippi, often is. Murrill is convinced states should not have to answer to the federal government.

“Our state sovereignty is what protects local government,” she said at a candidate luncheon. “It protects legislator roles to represent us. … It protects everything that we do at the local and state level in terms of state governance.”

Most often, the actions they are trying to protect are discriminatory. Their lawsuits involve closing ballot box locations, stripping reproductive rights, and treating suspected undocumented immigrants as convicted felons. Having federal constitutional protections against these is a severe inconvenience, and the goal is eradicate the federal government’s ability to stop discrimination.

The legal briefs say: it’s about states’ rights. Then the other person says: the right to do what. The answer is obvious: to treat some people as less deserving of equality than others. Same as it ever was.