Steve April 5, 2021
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It’s been a big term for state-on-state clashes at the Supreme Court. The justices could hand down an opinion any day now in California v. Texas, a major Affordable Care Act case that pitted Republican state attorneys general against their Democratic counterparts over the individual mandate penalty. More recently, and more notoriously, Texas filed a lawsuit directly to the Supreme Court to overturn election results in six states won by President Biden, which the justices unanimously rejected.

Right now, the justices are considering whether to take up another dispute between California and Texas. At issue is a California ban on state-funded travel to states, including Texas, that passed laws permitting discrimination against gay and transgender Americans. Texas is suing to overturn that ban and essentially force California to fund official business trips to the Lone Star State. It’s unclear whether the justices will ultimately agree to hear the case or rule in Texas’s favor. But it provides a revealing glimpse into how some Republican state attorneys general, and particularly Texas Attorney General Ken Paxton, think the Constitution should work.

The California law in question is known as A.B. 1887, which was passed in 2016 and generally forbids state agencies from approving state-funded travel to other states if they discriminate against gay and transgender Americans. The restrictions kick in if a state repeals anti-discrimination laws that protect sexual orientation or gender identity, or if they carve out religious-freedom exemptions to existing anti-discrimination laws for the same groups. Texas and ten other states currently fall under the restrictions.

California’s large population and economic strength give the restrictions some heft. Though the state claimed it has never had to enforce the measure, its existence has clearly served as a deterrent to some plans for state-funded travel. Athletic teams in California’s state-university systems, for instance, have had to raise private funds in some cases to travel to competitions in the targeted states. In some instances, those universities have declined outright to participate in athletic events and research conferences because of the law.

Almost all of the cases brought before the Supreme Court fall under its appellate jurisdiction, where it merely reviews the rulings made by state and lower federal courts. But the Constitution also outlines a narrow set of disputes where states can bring lawsuits directly to the court. The most common type of these cases is when one state brings a lawsuit against another, often about water and mineral rights or territorial boundaries. In February 2020, Texas made the unusual step of suing California to overturn A.B 1887, a rare case of a state directly trying to interfere in another’s laws.

In its motion for the court to hear the dispute, Texas painted A.B. 1887 as a threat to national integrity. “California’s travel ban is an affront to the sovereignty of Texas—as well as the ten other States that California has blacklisted,” the state argued in its brief. “It threatens the finely wrought structure of our federal government by Balkanizing States that are meant to be United. And it harms untold numbers of citizens—in Texas and elsewhere—who have lost the opportunity to furnish goods and services to their Californian neighbors.” Texas argued that the measure violates the Privileges and Immunities Clause and the Equal Protection Clause of the Fourteenth Amendment as well as the Interstate Commerce Clause and general principles of American federalism.

Slippery-slope arguments form much of Texas’s complaint. The state highlighted instances of retaliation by some of the other states affected by the California law, suggesting that similar laws could proliferate without the court’s intervention. It also briefly noted that the city of San Francisco recently passed an ordinance that forbids city-funded travel to states with restrictive abortion laws. That ordinance blocks future contracts between the city and companies headquartered in the targeted states, a restriction that’s not found in A.B. 1887.

Texas further made the audacious claim that A.B. 1887 is, in fact, a form of religious discrimination. The California law, Texas claimed in its brief, is “born of religious animus” because the states had justified their anti-discrimination under the aegis of protecting religious freedom. Since “religious animus” is not a legitimate motive for government action that’s driven by animus toward gay and transgender Americans, Texas argued that the Supreme Court must invalidate A.B. 1887. 

California has urged the justices to reject Texas’s bid for the high court to intervene. It disputes Texas’s characterizations of the bill and its effects. “A.B. 1887 is not a ‘trade embargo’ or ‘travel ban,’” California told the court in its brief. “It does not bar any commerce or prohibit any travel into or out of California; it instead limits what out-of-state travel California will pay for.”

That distinction matters when it comes to whether the Supreme Court should take up this dispute at all. Original-jurisdiction cases are rare in part because they are a drastic and heavy-handed intervention in the states’ internal affairs by the court. California argued that such an intervention was not warranted here. “States in our Union often disagree, sometimes vigorously,” California told the justices. “Neither California nor Texas can make the other conform to its preferred policy views. But each is surely entitled to criticize and decline to subsidize the other’s contrary policies. That is not an ‘attack on federalism.’ It is federalism in operation.” 


And despite Texas’s claims of coercion by California, California argued that Texas was effectively trying to “constrain California’s autonomy over decisions regarding how to spend its own funds,” which California described as a “core aspect of its sovereignty.” This interpretation of Texas’s actions has been strongly validated by later events. Six months after these briefs were submitted, Texas asked the Supreme Court to throw out the presidential election results in six other states because Donald Trump had lost. What greater infringement of another state’s sovereignty could there be than that?

If the justices are reluctant to take up this case, California offered a few procedural off-ramps. The Supreme Court has previously held, for instance, that the Privileges and Immunities Clause and the Equal Protection Clause “protect people, not states.” Most of Texas’s purported injuries at the hands of A.B. 1887 are actually injuries to private actors like restaurants and hotels, and not injuries to the state itself. Those companies, California noted, could potentially challenge A.B. 1887 in court on interstate-commerce grounds or sue state officials for implementing it.

Texas has had a powerful friend in this matter before the Supreme Court: the Trump administration. After the court asked for the Justice Department’s views on the matter last fall, Acting Solicitor General Jeffrey Wall filed a brief in December in favor of Texas’s position. He avoided some of the less persuasive aspects of Texas’s argument, such as the allegations of religious animus by California. But he underscored the central claim of coercion against Texas.

“Through A.B. 1887, California has reached beyond its own territory and has sought to intermeddle with Texas’s decisions about how to govern Texas’s territory,” the Justice Department argued in its friend-of-the-court brief. “To be sure, that penalty is likely too small to induce Texas or any other State to change its ways. But just as a small fine for protected speech still violates the Free Speech Clause, so too a small penalty for a State’s permissible legislative choices still violates the State’s sovereignty.” The Biden administration has reversed its position in other cases since January but hasn’t yet done so in this one.

It’s unclear whether the Supreme Court will ultimately take up the case. The justices have considered it at each of their weekly conferences since December without any further action. That delay could indicate that one or more justices is writing a dissent from the court’s decision to not take it up. It could also reflect that they simply haven’t reached a decision yet. If past practices hold up, the justices will likely make up their minds one way or another before the end of the term in June.

In either event, it’s hard to take Texas’s complaints in good faith when they are being made by Texas. Ken Paxton, the state’s attorney general, infamously tried to throw out other states’ electoral votes on baseless grounds just a few months earlier. And while he now describes California’s internal restrictions on state-funded travel as motivated by “religious animus,” Paxton also eagerly rose to defend the Trump administration’s ban on visa travel from Muslim-majority countries four years ago. They say everything is bigger in Texas—and that’s certainly true of the hypocrisy.

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