WASHINGTON — A top Justice Department official boasted at a private Republican gathering that the Trump administration was able to kill a Texas law that gave undocumented immigrants in-state tuition “in six hours” by coordinating with Texas Attorney General Ken Paxton, according to a recording obtained by NBC News.
On June 4, the Justice Department sued Texas over the Texas Dream Act, then quickly filed a joint motion with Texas asking a judge to declare the law unconstitutional and permanently enjoin Texas from enforcing the law. The same day, the judge did.
Outside organizations sought to invalidate the ruling Tuesday, arguing that the Justice Department and Paxton’s office “colluded to secure an agreed injunction” and engaged in improper “legal choreography” to obtain their desired outcome.
Speaking at the Republican Attorneys General Association a day after the quick court victory, Deputy Associate Attorney General Abhishek Kambli seemed to confirm that.
“So just yesterday, we had filed a lawsuit against Texas, had a consent decree the same day, or consent judgment, and it got granted hours later,” Kambli told participants, according to audio obtained by NBC News. “And what it did was, because we were able to have that line of communication and talk in advance, a statute that’s been a problem for the state for 24 years, we got rid of it in six hours.”
Kambli, who previously worked for Kansas Attorney General Kris Kobach, added that the Justice Department has “good relationships” with state attorneys general, which allows it to “get things done.”
Kambli also said the second Trump administration “is learning how to be offensive-minded," according to the audio.
“I think that was the biggest critique the first time around in the first Trump administration — there were a lot of missed opportunities to wield federal government power for the things that we value that just never happened,” Kambli said. “But this time we’ve brought in a lot of people from state AG world that have done that kind of litigation, know how to do it and have been doing it.”
Paxton's office did not respond to a request for comment.
A Justice Department spokesman did not dispute that Kambli made the statements and said it was “pretty standard” for Justice Department lawyers to notify state attorneys general of federal lawsuits ahead of time. He cited a Justice Department policy that providing fair warning to state attorneys general before filing lawsuits could “resolve matters prior to litigation.”
The Justice Department filed the lawsuit before U.S. District Judge Reed O’Connor, a George W. Bush nominee in the Wichita Falls Division in the Northern District of Texas whose court has become a destination for conservative litigants seeking favorable outcomes.
The groups Democracy Forward, the ACLU Foundation of Texas and the National Immigration Law Center filed a motion Tuesday on behalf of La Unión del Pueblo Entero, a union founded by César Chávez. The Mexican American Legal Defense and Educational Fund had previously filed a motion to intervene in the case.
The motion filed Tuesday argued that the sequence of events “compels one conclusion: the United States and the Texas Attorney General colluded to predetermine the outcome of the case.”
The motion added: “The founders did not design our adversarial system for shadowboxing between co-parties. The system demands opposition, argument, and deliberation — not consent decrees masquerading as litigation."
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Skye Perryman, the president and CEO of Democracy Forward, criticized Paxton for not defending the bipartisan Texas Dream Act, which the Legislature passed and Gov. Rick Perry signed more than two decades ago. She noted that the Legislature had declined to repeal the law.
Paxton recently announced that he is going to challenge U.S. Sen. John Cornyn in the Republican primary next year — a GOP-versus-GOP battle between two men who have been sparring for years and vying for President Donald Trump’s attention.
“Instead of defending the law of Texas ... Attorney General Paxton colluded with the Trump-Vance administration to try to eliminate the law through the courts,” Perryman said in a statement. “This maneuver is a misuse of the courts. If Attorney General Paxton will not defend Texans, we will. We are committed to ensuring that this cynical move is opposed, to defending the Texas Dream Act, and to supporting the courage of our clients.”
Carl Tobias of the University of Richmond School of Law said the heads of the Texas House and Senate should be concerned that Paxton’s office declined to defend a state law.
"The whole American premise of settling a case is that you have people who have conflicting interests and that's why they're in court to begin with," Tobias said. "But of course, we know for political reasons, they're probably not."
Saikrishna Prakash of the University of Virginia School of Law, who has researched the duty of state attorneys general to defend laws in all 50 states, said more attorneys general are willing to say laws are unconstitutional.
"Part of the reason why they're more willing to do that is a political reason, that they want to be senator or a governor," he said.
Prakash said that across Republican and Democratic presidential administrations, there has recently been a tendency to settle when a litigant takes a position the administration supports. Administrations also want settlements that will bind the next president to policies their parties support.
"In my mind, it's not a good way to run a railroad, whether done by Biden or by Trump," Prakash said.
Meanwhile, the Trump administration is suing more states over in-state tuition policies for undocumented students. The Justice Department sued Kentucky last week over its policy of giving in-state tuition to undocumented migrants. On Wednesday, the Justice Department sued the state of Minnesota over its law doing the same.
In both instances, the Justice Department pointed to the outcome in the Texas case as justification.
