87th LegislatureState HouseTexas House Gives Approval to Bill Scrutinizing Federal Executive Order Overreach

Executive orders have been used more and more at the federal level and a new bill looks to pump the brakes on their deployment in Texas.
May 5, 2021
One characteristic of the modern American presidency is the increased use of executive orders, but legislation approved by the House on Wednesday is a step toward Texas’ reassertion of the 10th Amendment.

House Bill (HB) 3046 by Rep. Mayes Middleton (R-Wallisville) tasks the Texas Attorney General with providing a monthly report of federal executive orders to the state government and its representatives.

“This bill is about Texas taking a stand to fight back against unilateral and unconstitutional presidential executive orders and making sure unconstitutional executive orders are not put into action by our state agencies or local government,” Middleton told The Texan.

In that report, the attorney general must provide an opinion on each executive order’s constitutionality.

The specific topics to which the reports must pertain include:

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  • pandemics or other health emergencies;
  • the regulation of natural resources, including coal and oil;
  • the regulation of the agriculture industry;
  • the use of land;
  • the regulation of the financial sector as it relates to environmental, social, or governance standards;
  • the regulation of the constitutional right to keep and bear arms; or
  • the free exercise of religion, including the congregating of religious practitioners.
  • It must also include the status of any federal lawsuit related to the underlying issue of the executive order if one exists.

Furthermore, should a federal court decision — past or forthcoming — indicate the executive order violates constitutional rights, then the legislation forbids state agencies or local governments from cooperating with the order.

The bill would provide the Office of the Attorney General with substantial discretion over what constitutes a breach of rights — but the practice is little different from the AG’s current responsibility of issuing legal opinions when requested by legislators.

This task would just be done automatically and on a monthly basis rather than upon request. The bill passed along party lines.

From the back microphone, Rep. Chris Turner (D-Fort Worth) questioned the legislation on the grounds that it places such discretion over constitutionality with the current attorney general specifically. Turner referred to Texas Attorney General Ken Paxton’s election lawsuit that was tossed by the U.S. Supreme Court and questioned Paxton’s ability to make those determinations.

In his bill layout, Middleton emphasized that the increasing use of executive orders is a bipartisan problem. He cited a list of the most recent presidents’ total executive orders issued:

  • Ronald Reagan – 381
  • George H.W. Bush – 166
  • Bill Clinton – 364
  • George W. Bush – 291
  • Barack Obama – 276
  • Donald Trump – 220
  • Joe Biden – 42 (so far)

Especially with a Democratic president, Texas has remained a willing opponent of federal dictates, and this bill looks to further entrench that posture.


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Brad Johnson

Brad Johnson is an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.