The Volokh Conspiracy

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President Biden Threatens To Sue Over S.B. 8

But who would the United States sue?


Today, President Biden issued a statement critical of the Supreme Court's decision in Whole Woman's Health v. Jackson:

Hence, I am directing that Council and the Office of the White House Counsel to launch a whole-of-government effort to respond to this decision, looking specifically to the Department of Health and Human Services and the Department of Justice to see what steps the Federal Government can take to ensure that women in Texas have access to safe and legal abortions as protected by Roe, and what legal tools we have to insulate women and providers from the impact of Texas' bizarre scheme of outsourced enforcement to private parties.

But who would the United States sue? The federal government cannot sue the state of Texas, as a whole.  There is no statewide injunction. The same Article III problems that were present in Whole Woman's Health v. Jackson would also be present in United States v. Reeves. The sovereign immunity issues may be different.