Trump, Paxton Sought Go-To Judge in Ending Migrant Tuition Rates

Texas Sen. José Menéndez (D) had his back brace and running shoes ready for a marathon filibuster to halt a bill that would end access to in-state tuition rates for noncitizens.

But Menéndez and other senators convinced Lt. Gov. Dan Patrick (R) to shelve the bill, and the legislative session ended June 2 with no action on it. Two days later, noncitizen residents of Texas were prohibited from paying the lower tuition rates anyway.

Bypassing the legislature, President Donald Trump’s Justice Department sued Texas in one of the state’s single-judge federal court divisions, asking for a permanent injunction against the law. Texas Attorney General Ken Paxton (R) quickly filed a motion saying the state wouldn’t defend it.

Judge Reed O’Connor, a George W. Bush appointee considered among the most conservative judges in the district, issued a final ruling ending the law and banning in-state tuition at Texas universities by the early evening.

O’Connor, who took the federal bench in 2007, presides alone in the division northwest of Dallas in Wichita Falls.

Responsible for striking down the Affordable Care Act in 2018, which the Supreme Court reversed, and killing a proposed plea deal between Boeing and the Justice Department because it raised diversity, equity and inclusion as factors, O’Connor is often turned to by litigators pushing conservative causes. But he’s defended his court’s assignment practices, telling a conservative legal group last year that efforts to curb judge shopping are due to “external political criticism.”

Trump and Paxton teaming up to kill the law right after the legislative session smacks of collusion, said Paul Gugliuzza, a law professor at Temple University who’s studied judge shopping.

“I don’t know how else you could explain the timing of the lawsuit, how quickly it was resolved, and the choice to file it before Judge O’Connor, who is probably among the most likely judges to sign off on something like this,” Gugliuzza said.

“I think a lot of judges would be offended that the state of Texas and the DOJ would try to use the federal courts in such a transparently manipulative way,” Gugliuzza added.

“It screams of coordination and coordination is akin to collusion,” Menéndez said. “If you saw anyone in the private sector doing this, everyone would say the fix is in.”

A DOJ spokesperson declined to comment. Paxton’s office didn’t respond to a request for comment.

Sue and Settle

The move to halt state laws by suing and settling didn’t begin with Trump and Paxton.

The Obama administration was accused of using it to settle environmental regulations with liberal-leaning groups that sued the Environmental Protection Agency. His administration in his first term settled 60 suits against the EPA, more than George W. Bush or Bill Clinton settled in any single term, according to a US Chamber of Commerce report.

Federal officials at the time said they couldn’t control who files lawsuits, but it irked Republican attorneys general who viewed it as a way to get new regulations implemented without going through the formal process.

But this lawsuit is different in terms of speed. Resolved on the same day Trump brought the challenge, it removed the ability of third-party groups to intervene, said Paul Nolette, a political science professor with Marquette University who studies state attorneys general.

“I think, given those factors, this would be a situation in which judges should give this a closer look and not simply rely upon the long-standing assumption that the parties are acting in good faith and we’re not going to really counteract what the federal government is doing,” Nolette said.

Patrick, who agreed to keep the legislation from a vote just weeks ago, issued a statement supporting Paxton for settling the lawsuit. The Senate bill passed out of committee late in the session and lacked support to make it to the Senate floor, he said.

And he noted the lawsuit’s efficiency, compared to the legislative route.

“After many years of trying, I’m glad AG Paxton settled this lawsuit after session because it immediately bans in-state tuition for illegal immigrants, rather than having to wait for legislation to go into effect,” Patrick said.

24-Year-Old Law

The law targeted by this lawsuit took effect in 2001, when Texas became the first state to extend in-state tuition to noncitizens. Now, about half of states have similar policies.

It was upheld in 2023 when a US Court of Appeals for the Fifth Circuit panel rejected a challenge from a conservative group to the tuition measure.

The law supported the workforce and kept migrants from taking on crippling debt to get an American college education, Menéndez said. The ban will affect noncitizens who are authorized to be in the US, as well.

The move to end the tuition discount builds upon Paxton’s and Trump’s like-minded approach to immigration. Many of the feuds between Paxton and Biden have moved quickly toward resolution since Trump took office.

The Justice Department in March dropped a Biden-era challenge to a Texas law authoring state-level deportations and criminal penalties for unlawful entry; the law remains blocked pending a challenge from immigrant advocates.

In May, Paxton and the DOJ signaled they’re close to resolving a Biden lawsuit to remove a floating river barrier that Texas wants to use. And on June 10 the DOJ is set to update a judge on whether it’ll continue to defend a Biden-era lawsuit from Texas to stop the federal government from cutting down razor wire at the border.

But supporters of the in-state tuition law are still dealing with the emotional ups-and-downs from their short-lived victory last week.

“None of us that care about young people knew,” it was coming, said Menéndez, the son of immigrants.

“Maybe they’re going, ‘Haha! we don’t need to pass this bill because we knew this play was coming,’” Menéndez said.