Over the years, Texas lawmakers have debated and passed a number of bills that were later struck down, in whole or in part, by the courts. Sometimes it happens for technical reasons. Sometimes a court rules it has violated a federal law, or is unconstitutional.
So why do they bother?
Alexandra Samuels, a senior politics editor at Texas Monthly, says Republicans in the Texas Legislature have often passed bills that they know will not pass constitutional muster. Listen to the interview above or read the transcript below.
This transcript has been edited lightly for clarity:
Texas Standard: How did you become aware of this trend, and how often has it been clear from the start that some bills passed by lawmakers would not stand up under court scrutiny?
Alexandra Samuels; So this idea came to me in June, actually, and that’s when Louisiana became the first state to require that the Ten Commandments be displayed in every public school classroom.
So after that became law, you had civil liberties groups announcing plans to file lawsuits to block it from taking effect. And those lawsuits are underway now. But amidst all this, we have Lt. Gov. Dan Patrick on X expressing his disappointment about a similar proposal failing to become law here in Texas first.
And it kind of struck me then, this question of why are certain Republicans wanting the Legislature to pass laws that, like you said, might not pass constitutional muster or are likely to get held up in the court system? And from there, I noticed a trend specifically in Texas laws that were passed during last year’s legislative session.
Well, you mentioned school prayer. What are some other examples?
So one of the laws we cite in our story is House Bill 900. That law, which was signed by Gov. Abbott last year, would have required book vendors that sell books to schools to rate each one based on its depictions or references to sex, and then to recall already-delivered works that they had rated explicit.
So shortly after the governor signed this bill into law, book vendors in Texas sued. And then in August 2023, a federal judge issued a preliminary injunction blocking the law enforcement. And then a panel of judges on the Fifth Circuit upheld that decision. So in the end, large parts of this so-called book-rating law did not go into effect here.
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So do lawmakers typically know what they’ve passed will likely be found unconstitutional by a court, or is this a political strategy?
That’s a really good question. I think there’s a distinction we have to make between what I call in the story “symbolic bills,” versus serious policy bills.
And I think for some legislators, there’s a real want to change public policy. But I think that’s something I’m still wrestling with, too, and that is to what extent are these bills just red meat for their base? Where lawmakers don’t really care about what happens in the courts, but it would be an added benefit to them if the court ruled in their favor.
So do Republicans in the Legislature feel like this continues to be a successful strategy, even when court cases cost the state a lot of time and money?
You know, I think they do, because at the end of the day, even if a judge rules against them, legislators can often win credit from their base by blaming the courts for usurping the will of the electorate.
In Texas politics nowadays, at least on the right, there’s really no such thing as being too conservative. But you can definitely be too moderate. And we’ve seen how being that, or the perception of even being a dreaded “Republican in name only” – a “RINO” – can kill someone’s political career.
And what’s helping certain Republican legislators, too, is that their base has shown an increased appetite for bills that defy legal precedent.
So, according to a 2023 poll from the University of Houston, 91% of Republicans said they supported book-rating legislation, essentially. And then there was another Texas Politics Project survey from April 2023 that found that 69% of Texas Republicans strongly supported banning drag performances in public spaces. That was another bill that passed last year and ultimately did not go into effect.
