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Weekly Updates from Attorney General Ken Paxton: March 3, 2017

Friday, March 3, 2017 – Austin

Friends,

 

Freedom lovers, near and far, exhaled a big sigh of relief earlier this week. President Trump signed an executive order demanding that the Environmental Protection Agency reconsider its thinly-veiled land grab—what is sometimes also referred to as the Waters of the United States (WOTUS) rule. I bring this up for two reasons. The first is that WOTUS embodies the very worst of our political system, where unaccountable agencies break free from their statutes and tread on policies, which rightfully belong to the states. The second is because WOTUS highlights the need for the states to finally and decisively push back if Congress continues to slumber while on guard duty.

The United States Constitution rejects unitary government. It presumes that concentrated power invites corruption. Accordingly, the Framers divided political authority, reasoning that self-interest would compel the separate branches and levels of government to jealously guard their jurisdictions. That framework has since buckled under the weight of Washington, D.C.’s ambition. Power now sits at the feet of federal bureaucrats, whereas Congress and the states have been reduced to the second and third tier.

For example, Congress tasked the EPA with administering the Clean Water Act, which prohibits pollution dumping in this country’s “navigable waters.” Ignoring the plain meaning of the term, the U.S. Supreme Court concluded that the EPA’s regulatory authority extends to permanent bodies of water, which bear a “significant nexus” to a navigable waterway.

Given an inch, the EPA then seized a mile. Under WOTUS, the Obama EPA has claimed the right to regulate any body of water located in a 100-year floodplain of a navigable waterway, as well as any within 4,000 feet from a tributary, pool or wetland under federal jurisdiction. The effect is to grant the EPA regulatory authority over almost every body of water in the country, from the largest to the smallest. As my office explained in our complaint, through WOTUS, the EPA would deny Americans control over their own property, and the states their sovereign right to govern.

President Trump’s order, although a step in the right direction, shows the limits of relying on the political branches alone. Because the EPA promulgated WOTUS through notice-and-comment, the president lacks the authority to rescind the rule on his own. He can only ask that the EPA—now under the leadership of my good friend Scott Pruitt—to propose and debate an alternative rule. Moreover, there is no guarantee that the Oval Office will forever be occupied by an executive respectful of the Constitution. The people deserve a more lasting solution.

For that reason I submitted on Tuesday a letter to Lt. Governor Patrick and Speaker Straus explaining the benefits of an Article V Convention of the States. Under this option, two-thirds of the states—34 in total—call for a constitutional convention that is tasked with specific and limited purpose of considering amendments which bring the Constitution back into alignment with its original design. Some may call it radical, but it is no more radical than the transformation that took place in Washington, D.C., when our backs were turned. As I stated in the letter, “A Convention of the States enters into the conversation when all other checks have failed. It is the ‘final’ defense against federal overreach the states can employ.”

The Texas Legislature now debates two bills, SJR 2 and HJR 39, which would have Texas once again join the fight against federal abuse. I sincerely hope that all Texans give these two bills the attention they deserve.


Very Truly Yours,

Ken Paxton signature

Ken Paxton