Predictable attacks on The Sword and Shield Acts
(And Why They’re So Revealing)
When a proposal threatens to return power from bureaucracy to the People, the response is never creative. It’s ritualistic.
Below are the standard attacks you can expect—often word-for-word—along with what they actually mean.
“The Attorney General is the State’s attorney, not the People’s attorney.
Structural resistance to citizen enforcement is predictable —
and exactly why these Acts are necessary.”
Why Attorney General “Feedback” Is Predictable — and Limited
A common question we hear is why Attorneys General often raise concerns about legislation like the Sword & Shield Acts.
The answer is structural, not personal.
An Attorney General is the State’s attorney, not the People’s attorney.
By law and function, the Attorney General represents:
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state agencies,
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state officers,
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political subdivisions, and
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the State as an institutional defendant.
The Attorney General does not represent citizens seeking to enforce constitutional limits against the State.
That distinction matters.
The Sword & Shield Acts are designed to restore constitutional enforcement by:
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limiting ultra vires conduct,
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rejecting immunity for unconstitutional acts,
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expanding citizen standing, and
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requiring courts to adjudicate constitutional violations rather than dismiss them procedurally.
Those provisions necessarily constrain the discretionary power of state agencies — the very entities the Attorney General is charged with defending.
As a result, Attorney General “feedback” on such legislation is inherently defensive. It reflects the interests of institutional clients, not the interests of citizen enforcement.
This is not corruption. It is role fidelity.
Why This Matters in Practice
Texans already experience this structural conflict in open-records enforcement.
When a citizen files a public-information complaint against a state agency or legislator, the Attorney General’s office is asked to rule on a dispute involving its own client. Predictably, enforcement is narrow, delayed, or avoided altogether.
That experience illustrates exactly why citizen-accessible remedies and judicial adjudication are essential to constitutional self-government.
The Constitutional Principle at Stake
In the United States, the People are sovereign.
Government exists only by delegated authority under the Constitution. When government actors exceed that authority, enforcement cannot be left solely to the government’s own lawyer.
You do not ask the defendant’s attorney to write the rules of accountability.
The Sword & Shield Acts return enforcement to:
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courts of law, and
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the citizen-sovereign,
where the Constitution placed it in the first place.
Attorney General input may be informative, but it cannot be dismissive when the issue is how the People enforce constitutional limits against the State itself.
What the People with the Power (and those who want it) will say:
1. “This is too extreme / too radical”
What they’ll say:
“This goes too far.”
“This is unprecedented.”
“This upends settled norms.”
What’s really happening:
They’re defending a system where unconstitutional practices survive through inertia, not legality.
Translation:
“Don’t touch the insulation we’ve built around ourselves.”
2. “This creates dangerous standing”
What they’ll say:
“Anyone could sue.”
“This opens the floodgates.”
“This invites harassment.”
What’s really happening:
They’re objecting to citizen enforcement.
Standing is power.
Whoever controls standing controls enforcement.
Translation:
“Only the State should be allowed to decide when the State has gone too far.”
3. “This undermines sovereign or official immunity”
What they’ll say:
“Officials won’t be able to do their jobs.”
“This exposes the State to liability.”
What’s really happening:
They’re treating immunity as a substitute for constitutional authority.
Sword & Shield says:
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lawful acts remain protected,
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unconstitutional acts are not acts of the State.
Translation:
“We rely on immunity to survive constitutional violations.”
4. “Courts can’t be forced to hear these cases”
What they’ll say:
“This interferes with judicial discretion.”
“This violates separation of powers.”
What’s really happening:
They’re defending avoidance doctrines that allow unconstitutional conduct to persist unreviewed.
Sword & Shield doesn’t tell courts how to rule.
It tells them they may not refuse to rule when the Constitution is implicated.
Translation:
“Delay is our ally.”
5. “These are political questions, not legal ones”
What they’ll say:
“This belongs in elections, not courts.”
“These are policy disagreements.”
What’s really happening:
They’re trying to rebrand constitutional violations as mere preferences.
The Constitution is law, not a suggestion.
Translation:
“Let unconstitutional conduct become normal before anyone can stop it.”
6. “We already have remedies for this”
What they’ll say:
“You can already sue.”
“Existing law covers this.”
What’s really happening:
They’re defending a system where remedies are:
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slow,
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expensive,
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post-harm,
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and insulated by immunity and deference.
Sword & Shield creates early, structural enforcement.
Translation:
“The current system works—for us.”
7. “This will be weaponized”
What they’ll say:
“Activists will abuse it.”
“This cuts both ways.”
What’s really happening:
They’re uncomfortable with neutral rules applied symmetrically.
Sword & Shield applies to:
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left and right,
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religious and secular,
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emergency powers and ordinary governance.
Translation:
“We prefer tools we control, not rules that bind us.”
8. “This threatens state sovereignty”
What they’ll say:
“The State must protect itself.”
“This weakens the State.”
What’s really happening:
They’re redefining sovereignty as government supremacy.
In the American system:
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the People are sovereign,
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the State is fiduciary.
Sword & Shield restores that order.
Translation:
“We are used to ruling downward.”
9. “This chills public service”
What they’ll say:
“Good people won’t serve.”
What’s really happening:
They’re conflating accountability with punishment.
Only unconstitutional conduct is restrained.
Only abuse of office is deterred.
Translation:
“We want discretion without consequence.”
10. “This is unnecessary / symbolic / messaging”
What they’ll say:
“This won’t change anything.”
“This is just signaling.”
What’s really happening:
They’re minimizing something that directly threatens their insulation.
If it were meaningless, they wouldn’t be fighting it.
Translation:
“Please don’t notice how hard we’re pushing back.”
The Pattern to Watch For
Notice what critics almost never do:
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Quote the Constitution
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Engage the oath
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Address ultra vires doctrine
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Defend compelled belief
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Explain why unconstitutional acts should be immune from review
Instead, you’ll hear:
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“prudence”
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“restraint”
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“floodgates”
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“unintended consequences”
Those are not constitutional arguments.
They are institutional survival language.