Texas Attorney General Ken Paxton’s choice last week to be the state’s new solicitor general is a renowned scholar, zealous advocate and “a key member of the conservative legal movement” with expertise litigating against alleged regulatory overreach by federal authorities, according to lawyers and academics who know his past work and even those who have done battle with him in court.
Experts say that the selection of Brigham Young University law professor Aaron Nielson, who specializes in administrative law, civil procedure, antitrust law and the federal courts, to be the state’s top appellate lawyer is a signal that Paxton is doubling down on his commitment to bring litigation against regulatory policies of the Biden administration.
Nielson, previously of counsel at Kirkland & Ellis, is heralded as one of the nation’s foremost experts on the Administrative Procedure Act, a 1946 law that governs how federal agencies develop and implement regulations and a statute that Paxton has repeatedly used to challenge the authority of federal agencies.
But nearly everyone agrees — even those who have opposed him in court — that Nielson is well-qualified and that the position of Texas solicitor general gives him a national legal platform that will likely have him arguing some of the most important legal issues of the day in the federal courts and the U.S. Supreme Court.
“Aaron is a leading scholar, an accomplished advocate and a good friend,” Judge James C. Ho, a judge on the U.S. Court of Appeals for the Fifth Circuit and Texas solicitor general from 2008 to 2010, told The Texas Lawbook in a written statement. “As an alum of the office, I’m delighted to see top legal minds across the country continuing to flock to Texas.”
Judge Ho and Nielson both clerked for Fifth Circuit Judge Jerry Smith, albeit a decade apart.
Nielson’s colleagues at the BYU’s J. Reuben Clark Law School say he has a reputation for being a generous colleague who invests in other people’s ideas.
BYU law professor Elysa Dishman, who focuses on government enforcement actions and corporate compliance, said Nielson was an early champion of her research ideas when she was a visiting professor and she credits his mentorship on helping her obtain a tenure track position.
“He’s a very well-respected scholar, and a very popular and well-liked professor here,” said Dishman, who noted that Nielson participated in a conference last week for junior scholars where he shared advice for law faculty at the beginning stages of developing their scholarship.
Dishman, whose scholarly expertise focuses on multistate litigation and the role of state attorneys general, said the position of state solicitor is relatively new and was created after a push by the National Association of Attorneys General to bolster the quality of advocacy states brought to intermediate federal appellate courts and the U.S. Supreme Court. Texas’ solicitor general position was created in 1999 by then Texas Attorney General John Cornyn.
“It doesn’t surprise me that he would find this to be meaningful, important work,” Dishman said. “I think public service is important to him.”
Neither the Texas attorney general’s office nor Nielson responded to interview requests. Nielson is taking a one-year leave of absence from the university.
“Now Texas has a key member of the conservative legal movement who I’m sure sees this as an opportunity to hook up with a political ally that’s going to be very powerful in terms of getting into court and getting these cases up to the Supreme Court, too,” said Paul Nolette, a professor of political science at Marquette University who focuses his research on state attorneys general and their influence on national policy through lawsuits against the federal government.
Nielson’s hire indicates Paxton is staffing up for the busy presidential election year ahead as Biden’s administration tries to finalize rules and regulations of his first term, Nolette said.
The Marquette professor said it was unheard of only a few years ago for a professor to leave a comfortable job in academia, but the influence of the Texas AG’s office with its large staff and resources is appealing to a member of the conservative legal movement who wants to impact policy. Nolette said Nielson is trading being an academic writing for law journals for the opportunity as Texas solicitor to write drafts of legal history through constitutional legal challenges and through briefs intended to influence Supreme Court justices.
“It’s a very powerful position, and it’s one of the most important, I would argue, in the entire connection to the federal judiciary nowadays,” Nolette said. “You can make arguments all you want in Harvard Law Review or whatever about the major questions doctrine, but you’re going to have a bunch of academics reading it, and maybe you move the needle a little bit.”
“But you’re going to have a much better chance at moving the needle by taking this position and leading the charge in litigation against the administration,” he said.
In 2020, the U.S. Supreme Court appointed Nielson to, ironically, brief and argue the constitutionality of the Federal Housing Finance Agency’s structure in Collins v. Yellen — a position that legal experts agree Paxton and other anti-federal agency advocates would have opposed. The dispute, which originated in the Southern District of Texas, weighed the constitutionality of the president’s authority to fire — or in the case of the FHFA the prohibition of the president to remove — the agency’s director for any reason other than “for cause.”
The Fifth Circuit, in a sharply divided opinion, ruled the FHFA violated the U.S. Constitution’s separation of power’s clause. The U.S. Justice Department under President Donald Trump at first asked the Supreme Court to grant certiorari but then later decided not to defend the law. The Supreme Court asked Nielson to do it.
“That’s where I came into the picture,” Nielson wrote in a 2021 article published by the Cato Institute. “Because the Department of Justice chose not to defend the constitutionality of the FHFA’s ‘for cause’ provision, the court appointed me to try to distinguish the FHFA from the CFPB. … Several months later, in one of the most surreal moments of my life, I found myself arguing constitutional issues with the justices on the telephone during the COVID-19 pandemic.”
In defending the constitutionality of FHFA, Nielson actually focused on the dissent of then Fifth Circuit Judge Gregg Costa, a judge appointed to the federal appellate bench by President Barack Obama
“Collins is difficult to describe because, at bottom, it is three cases in one,” Nielson wrote. “We learn from the court’s statutory holding just how deeply embedded federal authority is in today’s economy. We learn from the court’s constitutional holding that the White House can direct how that power is used. And we learn from the court’s remedial holding that the justices are not looking to tear everything down. When those three holdings are put together, what does it all mean? Well, it’s probably best to avoid simple narratives about the court’s views on administrative law.”
Nielson’s opposing counsel, David Thompson of Cooper & Kirk in Washington, D.C., said he was impressed with Nielson throughout their square-off and believes he will be an “outstanding” solicitor general.
“He is a truly outstanding advocate,” Thompson said. “He’s also a very fine gentleman and was extremely gracious in all our dealings.”
The solicitor general position was vacated this year by Judd Stone, who took a leave of absence to represent Paxton in his impeachment trial. Paxton was acquitted and his profile in some quarters of the far right seems to have strengthened, Nolette said. Stone has since opened his own law firm, joined by former colleague Christopher D. Hilton.
Nielson co-chairs the antitrust committee of the American Bar Association’s Administrative Law and Regulatory Practice Section. He has also chaired the Administration and Management Committee of the Administrative Conference of the United States. He is a visiting fellow at the Antonin Scalia Law School’s C. Boyden Gray Center for the Study of the Administrative State.
A 2007 graduate of Harvard Law School, Nielson has a master of laws from the University of Cambridge. Nielson clerked for Justice Samuel A. Alito Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit and Judge Smith.
Mark Curriden contributed to this report.