Bonus 155: The Six-Hour Settlement

The U.S. Department of Justice and the Texas Attorney General's Office turned the legal system on its head on Wednesday—and all because the Texas Legislature refused to repeal a 24-year-old state law.

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter (and unscheduled issues) will remain free for as long as I’m able to do this, I put much of Thursday’s bonus content behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and I hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit.

I was originally planning to use today’s bonus issue to preview the 32 decisions that remain outstanding from the Supreme Court in cases argued during its current (October 2024) term—with some of those decisions expected at 10:00 a.m. (ET) today. But then something happened yesterday afternoon that I couldn’t believe, and that sets a new (low) standard for shameless hypocrisy on the part of both the U.S. Department of Justice and the Texas Attorney General’s Office.

Within a span of just over six hours, (1) the federal government sued Texas challenging a state law under which undocumented immigrants who reside in Texas are eligible for in-state tuition at Texas’s colleges and universities; (2) Texas agreed to “settle” the lawsuit by consenting to a judgment under which the state would be permanently enjoined from enforcing the law because it violates the Supremacy Clause of the U.S. Constitution (ostensibly because it is preempted by federal law); and (3) the consent judgment was approved by the district judge—Judge Reed O’Connor, who had a 100% chance of having this case assigned to him, since it was filed by the federal government in … the Wichita Falls Division of the Northern District of Texas.

There are at least three problems with what happened here. First, the Supreme Court has long made clear that Article III courts lack the power to adjudicate such transparently collusive lawsuits—because there is no true case or controversy when “both litigants desire precisely the same result.” Indeed, district courts are supposed to have an obligation, in such circumstances, to protect the jurisdiction of the federal courts. Not so much, here.

Second, even if there’s some way to satisfy Article III in this context, it’s Republicans who have spent much of the past decade railing against what they’ve described as “sue-and-settle,” where a federal agency defendant agrees to settle a lawsuit with a plaintiff on the (alleged) ground that the agency agrees with the plaintiff’s regulatory goals. Those cases (1) usually take longer than six hours; (2) tend to involve contexts in which the agency has a good-faith argument that it’s going to lose the lawsuit if it doesn’t settle; and (3) are typically brought by directly affected interest groups. In all three respects, this seems … worse. Indeed, part of what appears to have prompted yesterday’s activity was the fact that two bills intended to repeal the 2001 state law failed this week in the Texas Legislature. A collusive lawsuit by the United States against a state shouldn’t be a backdoor when the democratic process has already declined to intervene.

And third, of all of the courthouses in which the United States and Texas could’ve played this game, they singled-out Wichita Falls—one of the handful of “single-judge” divisions remaining in any federal district court in the country after the Judicial Conference’s March 2024 policy statement strongly discouraging the practice. Not only does that suggest a lack of confidence on the parties’ part that a randomly assigned judge would have endorsed these shenanigans, but it also drives home that, for all of the complaining by the current administration and its supporters about “judge shopping” by litigants challenging Trump policies, the only real judge shopping that’s currently going on is by the federal government.

It’s all a stain on the federal courts—one that, in this case, comes at the literal expense of as many as 20,000 Texans who have been living in the United States since they were children. Everyone involved in this sham proceeding ought to be ashamed of themselves—and, if given the chance, the Fifth Circuit shouldn’t let it stand. I’m not holding my breath.

For those who are not paid subscribers, we’ll be back on Monday (if not sooner) with our regular coverage of the Court. For those who are, please read on.