In a letter to chairmen Elijah Cummings and Jamie Raskin, Texas Attorney General Ken Paxton fulfills the role of protecting the citizens of his state. He does this by standing up to an over-reaching congressional committee by simply telling them no.
The letter was in reply to a demand by the House Committee on Oversight and Reform and its Subcommittee on Civil Rights and Civil Liberties to comply with a previous request for documents relating to the State of Texas’ efforts to combat election fraud. While election fraud is a serious issue, I wish to focus here specifically on the AG’s response to the committee’s request.
Turning to your renewed demand for privileged and confidential documents requested in your March 28, 2019 letter, Congress lacks constitutional authority to compel those documents from a sovereign state. This is so for at least three reasons.
Attorney General of Texas letter to House Committee on Oversight and Reform
Texas AG Ken Paxton will give three reasons why the committee’s request is unconstitutional. Therefore, he will not comply with the House committee’s request.
Texas is not a subdivision of the federal government.
First and most importantly, your letter fails to recognize that Texas is not a subdivision of the federal government or a private citizen. Texas does not draw its authority from the United States or the United States Constitution, but from its status as a dual sovereign within the Union. The Constitution grants some powers to the national government, but reserves to the individual states “a residuary and inviolable sovereignty.”
Attorney General of Texas letter to House Committee on Oversight and Reform
We’re taught that the federal government is supreme, but AG Paxton reminds the House, and us, that it’s not. States are not subdivisions of the federal government, they are independent sovereigns with their own powers and authority. As James Madison notes in Federalist #39:
the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.
The federal government has certain enumerated powers, leaving the remaining powers with the states that created it. Using another quote from James Madison, this time from Federalist #45, Mr. Paxton reminds Congress who created whom.
Far from being entities that exercise “oversight” of the core functions of State governments, “each of the principal branches of the federal government [owes] its existence more or less to the favor of the State governments.”
Attorney General of Texas letter to House Committee on Oversight and Reform
The federal government is a creation of the states. In fact, it owes its very existence to the states, not the other way around. The federal government has no authority to order the states to do anything. Only the Constitution has the authority to force the states to do something.
Legislative branch must yield to constitutional protections
Second. the committee does not acknowledge that. where Congress’s exercise of investigatory functions clashes with another constitutional protection. the legislative need must outweigh the burden placed on that constitutional protection for the legislative need to prevail.
Attorney General of Texas letter to House Committee on Oversight and Reform
Congress is a creation of the Constitution, and as such is subject to it. When a congressional power clashes with a constitutionally protected right, the constitution must win. Congress cannot simply say they need something; according to AG Paxton they need to show their need outweighs the burden of the protections in the Constitution. Here I disagree with AG Paxton. When congressional power conflicts with the Constitution, it is the Constitution that must win. Unless the states’ decide to grant the federal government a new or expanded power through a constitutional amendment, Congress is prohibited from placing their needs or desires above the protections of the Constitution.
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. In this case, that risk would be made particularly acute by the committee’s attempt to force the constitutionally-designated attorney for the State of Texas to divulge privileged and confidential communications with a client concerning the client’s
enforcement of Texas law.Attorney General of Texas letter to House Committee on Oversight and Reform
Ultimately, the question is: Can Congress order a state to do something in violation of the state’s sovereignty? Can a Congressional committee force a state to violate their own laws?
Congress does have some oversight responsibilities. Since only Congress can impeach and remove a federal officer, it’s implied that they can investigate those in the federal government. What Congress does not have is general oversight of the states. The only areas that Congress has oversight is where the states have delegated power to the federal government through the Constitution. Should the states allow Congress to assume general oversight of them it would be the end of the republic; we would not longer be a union of sovereign states but subjects of an all powerful federal government.
Legislative Purpose
Third. the Committee fails to identity any valid legislative purpose for its inquiry.
Attorney General of Texas letter to House Committee on Oversight and Reform
Congress cannot simply make up a reason to do something; they are limited by their enumerated powers. And most important, the first line of defense to keep Congress (or any part of the federal government) from infringing on our rights, are the states.
As the Supreme Court has rightly observed. Congress is not a law enforcement or trial agency.” nor can it investigate “solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated. The House of Representatives’ own rules require inquiries to be “related to, and in furtherance of, a legitimate task of Congress?”
Attorney General of Texas letter to House Committee on Oversight and Reform
The Constitution prohibits Congress from being a law enforcement or trial agency. Where you ask? Article I, Section 8, Clause 18 only allows Congress to pass laws to enforce the powers enumerated to them or the rest of the federal government.
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Though Congress passes the law, they are not given the power to enforce it, neither do they determine guilt or innocence, except among their own members. If the states were to allow Congress to become judge, jury, and executioner, then the separation of powers that protect our rights would be gone.
Conclusion
While I doubt this will make much of a difference to Mr. Paxton, I want to thank him for standing up for the citizens of his state. It is far past time more states work to protect their citizens from an ever-growing federal behemoth and return it to the subservient creation it was made to be.
Those of you who are citizens of Texas, I hope you will support your Attorney General for this action, and stand behind him should Congress decide to push the issue.
