Greg Abbott’s War

The state attorney general on Obamacare, secession, and challenges to Texas sovereignty.
Greg Abbott’s War <span><strong></strong></span>
Photograph by Jeff Wilson

JAKE SILVERSTEIN: Let’s start with the health care law. You were one of 26 governors and state attorneys general who participated in the lawsuit. Were you surprised by the U.S. Supreme Court’s decision?

GREG ABBOTT: I was stunned. No one expected the case to be decided the way that it was. I’ve been involved in thousands of cases, and never have I been as surprised as I was here. We won every battle that we waged in this litigation, then lost not to the opponent but to a chief justice who decided the case on a pathway hardly anyone paid attention to. 

JS: The way he wrote the decision—upholding the mandate as a tax and not using the Commerce Clause—seemed to leave the door open to further jurisprudence limiting federal power. You don’t see that as a silver lining?

GA: We can see victories on some battlegrounds but still feel the pain of having lost the war. 

JS: It was cold comfort.

GA: Cold comfort. But I can expand on what you were saying. We really had a kind of landmark achievement in reining in the expansion of the Commerce Clause. This is the first meaningful curtailment of Congress’s power under the clause since the time of FDR. And it’s the first decision by the Supreme Court since Medicaid was created that said there are outer limits to what Congress can force Americans to do. The Medicaid component of the decision is filled with references to the imperative of states’ rights in the United States Constitution. So there were several significant victories along the pathway to defeat in this case. 

JS: Let’s talk about the contraception mandate, which would potentially require some religious organizations to provide contraceptives and which you have challenged with another lawsuit. You believe that this violates freedom of religion. 

GA: [The Obama administration] is adamant that their pursuit of their own health care goals should trump anyone else’s constitutional rights. We have shown that their pursuit of the individual mandate under the Commerce Clause violated constitutional rights. Their pursuit of the Medicaid expansion violated constitutional rights. We believe equally that we will prevail on this, that their mandate to religious organizations violates the First Amendment. 

JS: But none of that challenges the law in its entirety. Where does the resistance to Obamacare go now?

GA: Well, there are two pathways. One is that the election in November is going to be a referendum on Obamacare. But putting aside the political arena, on the legal side, we go back to the reality that most of the regulations for Obamacare have yet to be written. So as this multitude of regulations comes out, there is the possibility of future legal challenges being raised. 

JS: Would you be involved?

GA: I can guarantee you that if there are any legitimate legal challenges that can be waged, Texas will be fully involved. 

JS: You have filed, by my count, 25 lawsuits against the federal government. It’s fair to say that Texas has become one of the prime adversaries of the federal government, and your office has become the prime legal agent of that resistance. Is that a role that you’re comfortable in?

GA: It’s a necessary role. Frankly, I wish I did not have to be involved. I am a willing combatant, but I would be happy if the wars went away, because the challenge is to Texas sovereignty. 

JS: You mentioned earlier that the Obamacare ruling was the first significant curtailment of some of the powers that the government has taken since the New Deal. Are there other parts of the regulatory apparatus that have come about since then that you think infringe upon states’ rights? 

GA: Well, the answer is a definite yes. I’m not sure how much time we have, but there has been an ongoing expansion of the beast known as federal bureaucracy. It is consuming this country and diminishing both the rights of states and individuals in a way that must be stopped. If it is not stopped, it will pose a serious challenge to the future of this country. 

JS: Let’s say it’s not stopped. Let’s play out that scenario. What does America look like in 25 years?

GA: We don’t have to engage in fictional imagination to answer that question. As we speak, you see the turmoil in Greece, Spain, Italy, and other European nations because of the consequences of too many entitlements, too much bureaucracy, too much governmental interference with the free enterprise system. You can look at the state of California, which is on a pathway to destruction because they expanded government too much, thinking that there would always be someone to pay for it. 

JS: You and the governor obviously see eye to eye on this. Is it something you discuss with him?

GA: We converse periodically about the challenges we have waged and about future potential challenges. 

JS: Speaking of the governor, one of the big moments of the past few years, in the context of federal overreach, was when he mentioned secession [at a tea party rally on April 15, 2009]. I’m certainly not asking you to endorse secession, but in the context and spirit of states’ rights, did you sympathize with the sentiment of what he was trying to say that day? 

GA: Well, first, I don’t think he said that. In fact, it was someone in the audience who said it, if I recall correctly. And I continue to believe that we can fight this overreach from within the existing system and framework. If I have to, I will use one challenge after another to dismantle governmental operations that I consider violations of the Constitution. During my time as a judge, as a justice, and as attorney general, I’ve had one overarching goal, and that is a strict interpretation and application of the laws and the Constitution. I would be Madisonian.

JS: I was going to ask you if you have a philosophy of interpreting

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