Texas’ swift surrender to DOJ on undocumented student tuition raises questions about state-federal collusion

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It happened fast.

On Wednesday, the U.S. Department of Justice sued Texas over its long-standing state law allowing undocumented students to get in-state tuition. The lawsuit was barely on the books before Texas surrendered without a fight, asking a judge to strike down the law — which he did.

The whole lawsuit was closed out within hours, with both the U.S. attorney general and the Texas attorney general taking credit for the ruling.

It’s unusual to see a state work so closely with the federal government to use the courts to overturn a state law the Legislature had allowed to stand, legal experts say. It’s particularly surprising in Texas, a state with a proud history of battling the federal government and staking out aggressive positions on the limited role the feds should have within its borders.

The nature of the court system is intended to settle legitimate disagreements. The U.S. Supreme Court has long held that courts cannot rule on collusive, or friendly, suits where there is no controversy because both parties are working together on a desired outcome. Some experts are questioning whether the DOJ’s original lawsuit against Texas could be thrown out on these grounds.

“You have to have a real dispute,” said Dallas appellate attorney David Coale. “If everybody agrees on it, well, why are you in court? It's not a lawsuit.”

At least one immigrant rights group, Immigrant Families and Students in the Fight, said in an interview that it is considering bringing legal action to try and restore the program. Coale said they might be able to be added to the suit as the affected parties, even though the judge has already granted a final judgement, and appeal the whole ruling to a higher court.

“There may be some very conservative judges that look at this and say, ‘this doesn't smell like a case or controversy. It smells like a deal,’” Coale said.

“Seems like… collusion”

Texas’ law offering undocumented immigrants in-state tuition has been on the books since 2001. Despite rising conservative opposition, the Texas Legislature has never amended the law.

This session, a bill to repeal the law stalled after passing out of a Senate committee. Lt. Gov. Dan Patrick, the influential leader of the Senate and a longtime opponent of the law, told The Texas Tribune he didn’t bring the bill up for a vote because it didn’t have the votes to pass in the upper chamber.

When the Texas Legislature gaveled out on Monday, immigration organizers breathed a sigh of relief — believing the tuition policy was safe at least until the Legislature returns in two years.

“Less than 48 hours later, we find out Texas has been in cahoots with the federal government to undo this through a backdoor,” said Cesar Espinoza, executive director of Immigrant Families and Students in the Fight, which goes by its Spanish acronym FIEL.

It’s unclear exactly how this litigation came to be, but in a press release, U.S. Attorney General Pam Bondi credited Paxton for “swiftly working with us” to undo the state law.

The six-hour time frame from the lawsuit being filed to the case being resolved makes it likely this was pre-orchestrated to some degree, said Ilya Somin, a law professor at George Mason University and scholar at the libertarian Cato Institute.

“It seems — and I emphasize the word seems, because, obviously, I don't know for sure — but it seems like that kind of collusion happened,” Somin said. “Texas and the feds may have agreed beforehand that this suit would be filed and Texas would essentially agree to not contest it, and thereby, they get around the existing law.”

Paxton did not respond to multiple requests for comment for this story.

It’s a “little ironic,” Somin said, that Trump and Texas are being accused of using this strategy.

Conservatives frequently accuse Democratic presidential administrations of courting lawsuits from liberal groups that allow them to agree to consent decrees that reflect policies they likely couldn’t get through Congress. U.S. Rep. Pat Fallon, a Texas Republican, joined others in probing the Biden administration’s use of “sue-to-settle” lawsuits around environmental policies, like water pollution rules for meat processors, in 2023.

“Traditionally, conservatives have argued that that’s not okay,” Somin said. “And now, with this, [Texas] has adopted tactics, ironically, from the left-wing playbook.”

What Texas and the DOJ have done here goes far beyond “sue-and-settle,” according to Georgetown law professor Steve Vladeck. Those cases usually have an interest group of directly impacted people trying to push the federal government for an outcome, not the federal government trying to change a state law. They also typically take far longer than six hours to resolve, he said.

“None of the sue-and-settle examples that have been the source of public outcry involve effectively nullifying a state law,” he said. “It's one thing for the federal government to agree to a settlement that impacts a federal regulation, but here you have a state settling with the federal government to, basically erase a state law from the books.”

He noted that this case was filed in Wichita Falls, where U.S. District Judge Reed O’Connor, long a favored judge for the Texas attorney general and conservative litigants, hears all cases.

“There’s a reason that, out of all the courthouses in all the land, they walked into this one,” Vladeck said.

A blueprint for red states

Texas spent most of the last four years aggressively battling the Biden administration, building on a reputation it developed during the Obama years as the bulwark against Democratic policies. Paxton, and Abbott before him, fought in the courts to try to ensure the state was governed by the narrowest interpretation of federal authority.

The state took a particularly hard line on immigration. The Biden administration sued Texas repeatedly for violating the Supremacy Clause of the U.S. Constitution, which says that federal law supersedes state law when they are in conflict. Texas fought back, hard, on initiatives like Operation Lone; a state law that allows local officials to arrest migrants; and a plan to put buoys and razor wire in the Rio Grande Valley.

It’s unsurprising that Texas is more cooperative with the Trump administration on these issues, politically and personally. Several former employees from the Texas Office of the Attorney General have landed in high places in the administration, among them Paxton’s former top deputy Aaron Reitz, who now leads the Office of Legal Policy at the Department of Justice. Paxton is also courting Trump’s endorsement for his Senate race.

Vladeck said this suit is an outgrowth of the increasing politicization of attorneys general offices nationwide.

“This highlights one of the real problems with that development, which is, you can have a scenario where a sufficiently politically motivated state attorney general, working with the right Justice Department can basically make an end-run around the democratic process in their state,” he said.

Texas’ willingness to let any federal administration come in and tell it what to do about its state laws has raised some eyebrows among legal experts and political scientists.

“It gets you a policy result you like today, but it’s at the price of giving up some sovereignty,” Coale said. “The next time the federal government comes calling, it may not be quite so friendly and you may regret having given them that ground.”

Robert Henneke, executive director and general counsel at the Texas Public Policy Foundation, rejected the idea that the action was political, saying the lawsuit was in line with the Department of Justice’s long-standing commitment to enforcing federal law. Henneke led an ultimately unsuccessful lawsuit in 2022 challenging Texas’ law.

“States like Texas have been in clear violation of federal law on this issue,” he said Thursday. “If anything, it’s surprising that this wasn’t brought earlier.

Much like Texas’ original law was a model for other states, this legal non-battle may give other red states political cover to do away with their tuition benefits for undocumented students, said Gary Reich, a political scientist at the University of Kansas, who studies these laws.

“I could envision states led by Republicans using this to short-circuit the difficult work of repealing these laws through the legislature, while still allowing them to claim some credit,” he said. “And if they don’t, the DOJ can go to them now and say, Texas folded. How about you?”

Disclosure: Texas Public Policy Foundation has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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