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.

Comments

[Krychek_2]

The United States could criminally prosecute any plaintiff who sues any abortion provider under the new Texas law for violation of civil rights. I suspect any such plaintiff might also be vulnerable under 42 US 1983 for violating civil rights under color of state law.

[dwb68]

Since you cant prosecute someone for merely filing a lawsuit your theory is dubious.

There probably are ways that the Fed government can fight this, by filing suitable amicus briefs to defend providers, or getting plaintiffs certified as a class and then subsequently arguing that the lawsuit imposes an undue burden.

Unfortunately, the Biden administration is demonstrably incompetent. They will fight it in the dumbest way possible and lose.

[Krychek_2]

Can you cite any authority for the proposition that you can't prosecute someone for filing a lawsuit?

What the statute says is that any person who violates the civil rights of another person can be prosecuted. I contains no exception if the method by which you violated their civil rights was by filing a lawsuit.

[dwb68]

Merely filing a lawsuit is not violating anyone's civil rights, lol, any more than saying stupid shit on the internet is assault .

The closest analogue you have is malicious prosecution or abuse of process, but even in those cases the victim of malicious prosecution or abuse of process has to have the case terminated in their favor first. Prosecutor prosecutes you for something, case dismissed in your favor, then you get to sue for malicious prosecution. So abortion providers have to defend the lawsuits first, win, then they might sue. But having abortion providers suffer death by a thousand lawsuits in legal bills is the idea. They might recover legal fees, or they may go bankrupt first.

But importantly, to win a malicious prosecution or abuse of process case, it has to lack probable cause or actual malice. Here the statue gives them probable cause to file a suit so its not malicious or abusive.

Keep in mind (see post below) i'd like SB8 neutered ... but this is not the way.

[Krychek_2]

Actually, that depends on what is the purpose of the lawsuit. If you're filing it to violate someone's civil rights, then it would.

[dwb68]

no. SB8 gives people a cause of action which takes any maliciousness out of it.

[Krychek_2]

The cause of action is a pretext to violate someone's civil rights.

Think of it this way: Suppose I don't want to live next door to minorities, so when a black family buys the house next door, I sue them, claiming that the house isn't up to code so they can't live there. Suppose the house really isn't up to code and I haven't made that part up. If, nevertheless, they can prove that the real purpose of the lawsuit was to violate their fair housing rights, I think they probably would have a cause of action.

[dwb68]

The example you cite happens all the time. Selective prosecution is also a thing. Gun (and drug) laws are famously racist and historically enforced only against minorities. Police let white kids off when they find pot, and arrest black men.

Its hard to win those lawsuits, its hard to prove actual malice, takes decades, and by the time that happens the abortion providers will be bankrupt.

[Krayt]

Man whatever happened to siccing regulations on people so your wiggling fingers can stop wiggling? Or the uppity journalist shuts the hell up?

[jimc5499]

That's funny. Isn't it being done right now with regards to fraud in the 2020 Presidential Election?

[WuzYoungOnceToo]

I contains no exception if the method by which you violated their civil rights was by filing a lawsuit.

It also doesn't contain any exception for violating someone's civil rights by thinking mean thoughts.

You can't possibly be as stupid as you go to such great lengths here to make yourself appear.

[Krychek_2]

Can someone let Wuz's owner know he's barking again and needs to be whacked on the head with a newspaper.

[WuzYoungOnceToo]

You're like that 4 year-old who keeps telling the same stupid knock-knock joke ad nauseum...because it's the only joke he knows...and thinks it's hilarious each and every time.

[Krychek_2]

I’ll come up with new material when you do.

[Kazinski]

Can you cite any authority that allows arresting someone for filing a lawsuit? There are thousands of abusive lawsuits filed every year, no one gets arrested for filing a lawsuit, not even a lawsuit to enforce a illegal deed restriction.

In fact access to the courts is a civil right, arresting someone for filing a lawsuit would be violating someone's rights under the color of law.

[Krychek_2]

I think it depends on whether the lawsuit is a pretext to violate someone's civil rights.

But I also think that since we're now passing laws specifically designed to punish people via the legal process, that this would be the same thing as the law giving anti-abortion activists the right to sue abortion providers. Even if the case is complete bullshit and will get thrown out as soon as a judge looks at it, the point isn't to win the suit, it's to bankrupt your opponent. Pro-abortion US attorneys would simply be playing the same game the Texas legislature is playing, just for the other team.

[Harvey Mosley]

So the next time Handgun Control Inc (or any of the other names it uses to sound less offensive and extreme) files a lawsuit against gun manufacturers they can be criminally prosecuted for violating someone's rights under color of law? Awesome!

[Krychek_2]

They can't file a lawsuit against gun manufacturers, remember? Congress banned the practice.

[Harvey Mosley]

The problem is they still do. And activist hoplophobic judges let them. Here is the case from Pennsylvania: https://www.bradyunited.org/press-releases/plcaa-guns-unconstitutional-federal-court

Even though I'm a gun owner I can see the positive aspects of this. If I'm injured by a drunk driver or just by a reckless drive I can sue the auto manufacturers because someone else used their lawful product illegally. If it is a drunk driver I could go after Ford AND Budweiser. I could probably retire at that point and drive cross country hoping for more fender benders to add to the retirement fund. /s

[WuzYoungOnceToo]

They can’t file a lawsuit against gun manufacturers, remember? Congress banned the practice.

No, Congress did not ban the filing of civil suits against firearms manufacturers. If there are any semi-literate adults in your home have one of them read and explain the PLCAA to you. It isn't that difficult to understand...except perhaps by an insufferable idiot such as yourself.

[Krychek_2]

Can someone let Wuz’s owner know he’s barking again and needs to be whacked on the head with a newspaper?

[Harvey Mosley]

"Can someone let Wuz’s owner know he’s barking again and needs to be whacked on the head with a newspaper?"

Is that your normal response to someone who provides correct information that doesn't match your feelz? Firearms manufacturers can be sued. They just can't be sued because someone illegally or negligently uses their legal product. (At least, that's the law. The judge in PA decided his feelz outweighed the law.)

[DaivdBehar]

They would have to overcome access to the court in the Texas constitution.

All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law.

[ReaderY]

The First Amendment protects the people when they peacefully petition their government for a redress of grievances.

That means no criminal penalties for doing so.

[Rev. Arthur L. Kirkland]

" Since you cant prosecute someone for merely filing a lawsuit your theory is dubious. "

Again, precisely the level of legal insight this White, male, right-wing blog is known for. Are any strong law faculties ever going to hire another movement conservative for a faculty position?

[DaivdBehar]

Artie, please, review the Texas constitution.

Also, it is time you were replaced by a diverse. Diversity is the strength of our country.

[David Nieporent]

"A diverse"? What is your native language, exactly? Diverse is an adjective, not a noun.

[James Pollock]

Back in the 80's, I went to Texas for basic training. Landing in the airport, I noticed that all the signs were in two languages. English was at the bottom. English may not be the primary language of Texas. Some other memories: Looking at the thousands of bats circling buildings at dawn and dusk, and seeing the giant insect that the natives called a "water bug"

[Matt Buckalew]

You got bitched slapped and now you’ve lost your composure. Go away for a few days. Low status whining GTFO. The arc of history just made you squeal like a pig.

[AtR]

"Unfortunately, the Biden administration is demonstrably incompetent. They will fight it in the dumbest way possible and lose."

Seconded.

[James Pollock]

Team Kraken was available?

[Bob from Ohio]

"The United States could criminally prosecute any plaintiff who sues any abortion provider under the new Texas law for violation of civil rights."

Do it. It would be great to see how Texas juries treat them.

[Nisiiko]

Depends where. I'm sure in Travis County, a jury of weirdo stoner leftists would be all over it.

[Krychek_2]

The point isn't to win the case, it's to bankrupt your opponent through the legal process. Same thing the Texas legislature is doing, just for the other team.

[James Pollock]

Won't work, they'll just do fundraisers and soon enough they'll have more money than they started with.

[Patrick Henry, the 2nd]

Except they aren't violating civil rights, they are protecting the civil rights of babies.

[Krychek_2]

Oh, they're doing post-birth abortions now?

[TwelveInchPianist]

Yup. That's what Northam said, remember?

[Brett Bellmore]

They are in NY, I'd be surprised if they don't occasionally happen in Texas.

[James Pollock]

Seems like one is called for in Virginia. But, make it look like an accident.

[Noscitur a sociis]

Aside from any other issues, § 242 requires proof of willfulness -- that is, that the defendant knew that they were violating someone's rights. So it wouldn't be a viable theory to use against the vast majority of plaintiffs who think that they're acting with justification.

[James Pollock]

" So it wouldn’t be a viable theory to use against the vast majority of plaintiffs who think that they’re acting with justification."

So, you analysis requires assuming that anti-abortion folks didn't know about Roe v. Wade?

[Mark Leen]

This application of criminal law might be viewed as a violation of the right to petition government (e.g., file a lawsuit).

[James Pollock]

The application of criminal law happens in a courtroom, at which point the defendant IS still allowed to claim innocence.

[dwb68]

If I were Prelogar I would run far and fast by from the Biden admin and their "kitchen table" legal advisors.

I am sure that the Biden kitchen table advisors will think up something, some judge will buy it, and then the Roberts court will smack their bean just like the CDC eviction moratorium, leaving the Biden admin in a worse position than before.

To be fair, Texas SB8 sets a dangerous precedent that will come back to haunt conservatives. After the Supreme Court says that shall-issue is the law of the land, states like NY will pass something similar to SB8 to make private actors responsible for enforcing carry laws ("He scared me with his black gun").

I mean, this model is pretty much what elites are doing with social media, getting corporations to do the censorship work that the government can't.

Maybe AT&T and Google can search your phone as private actors for child porn, since the government cant. Oh wait...

So what goes around comes around and goes around again.

[Rev. Arthur L. Kirkland]

Perhaps better Americans will just criminalize bigotry and voter suppression, effectively excluding conservatives from American society.

[DaivdBehar]

Now, Artie. That is just frustrated hate speech. I thought the culture war over and won long ago. Why are you so threatened by a shadow docket decision without argument?

[James Pollock]

"I thought the culture war over and won long ago."

The future is still coming. It probably will not look much like 1859.

[Rev. Arthur L. Kirkland]

The culture was has not concluded, but it has been settled. Still more progress to be effected and more fun to be had by the liberal-libertarian mainstream.

[Twindad46]

What do you think liberals have been doing for the past couple of years? They're getting private social media companies to enact government censorship and they have convinced private companies to enforce vaccine and mask mandates. All that Texas is doing is joining the liberals in their own game.

[Rev. Arthur L. Kirkland]

Delusional, conspiracy-addled, bigoted, defeated right-wing hayseeds are among my favorite culture war casualties.

[Matt Buckalew]

Lol you can’t threaten people with what’s already happening. Lot T lower status dorks like Kuckland have already shot their wad with the sticks and stones.

[Noscitur a sociis]

But who would the United States sue? The federal government cannot sue the state of Texas, as a whole.

That is probably why Biden did not say that the government was planning on suing somebody over this.

[Alpheus W Drinkwater]

I was wondering the same thing, especially after reading the entire statement. Why does Prof. Blackman jump to lawsuits? Nowhere is there any stated intent to sue anybody.

[ah....Clem]

If you had to make nineteen front page posts a day like Prof Blackman you probably wouldn't have time to read the things you post about either.

[MatthewSlyfield]

What other tool would they have to achieve the stated goal?

[Bob from Ohio]

"did not say that the government was planning on suing"

What does "legal tools" mean then?

Civil suits or criminal prosecutions. What else?

[Sarcastr0]

Perhaps rather than tools of the legal variety, it is tools that are not illegal.

[Alpheus W Drinkwater]

It can mean any measure the administration takes that is legal.

[Longtobefree]

He can sue the Supreme Court, right?

[great Unknown]

An interesting approach, indeed. He can find a Hawaiian judge who will issue a writ of mandamus ordering SCOTUS to issue an injunction against the Texas law. By the time this is adjudicated, it will give the administration a few months, by which time SCOTUS might have gotten around to actually making a definitive ruling.
[a little sarcasm here, as I enjoy Professor Blackman's more stable legal environment...]

[James Pollock]

" I enjoy Professor Blackman’s more stable legal environment"

Are you suggesting that Prof Blackman is practicing law for horses?

[James Pollock]

Perhaps THAT explains all the horseshit.

[danculley]

It seems like their best bet would be to sue a defendant class under Rule 23(b)(1). The class seems reasonably definable as anyone interested in enjoining abortions after six weeks. Notice won't be the easiest, but sufficiently broad notice by publication should do it. I don't think there would really be any doubt that all the people who would likely want to sue at the time would be notified. (Harder is someone who might only object in the future to a particular person getting an abortion, for whatever reason.)

Probably the most difficult aspect is getting an adequate class representative. But there must be some right-to-life group that wants to challenge Roe that would put themselves forward, even if that might not be the best strategic move for the movement as a whole. And it would hardly be sympathetic for other groups to pop up and say that group is inadequate as a representative because the rest of the class wants to lurk silently and only challenge if they can't scare clinics out of operation. Plus, by definition saying that is the plan gives rise to the adversity necessary for a DJ action against the objecting group individually, so you can just add them as individual defendants as they pop up and object, using their own papers against them.

That said, I think this approach works better for the clinics as a declaratory judgment action than it would for the federal government.

[KenveeB]

You think you can certify a class of "anyone interested in" something? Seriously??

[danculley]

I didn't say it would be successful. I said it was their best bet. And you'd obviously try to put more precision around the actual class definition, but that would be the basic idea. It's a general issue with most defendant classes in DJ actions.

[dwb68]

You would have to wait for groups to actually sue the abortion providers.

> collect up all the plaintiffs and get them certified as a class
> defend the class lawsuit by arguing that the lawsuit imposes an undue burden, which is a defense under SB8.

[buckleup]

So they should pack the court right?

Seems Breyer disagrees with that, as did Ginsburg.

That whole notion got dropped, probably because their internal polling shows them losing Congress next year.

[Rev. Arthur L. Kirkland]

You must see different polls than I do, particularly with respect to the Senate, where the principle question seems to be 'how large with the Democratic/independent majority be?' Current information indicates we likely will be position to start ramming without need of a vote from Manchin or Sinema.

[Matt Buckalew]

Kids this is what panicked butt hurt looks like.

Culture war is putting on its pimp rings and your bussy better start earning. You ain’t earning you lurnin’ the hard way.

[James Pollock]

You forgot to put quotes around what the panicked butt hurt looks like, which is

"Culture war is putting on its pimp rings and your bussy better start earning. You ain’t earning you lurnin’ the hard way."

[Rev. Arthur L. Kirkland]

Open wider, Matt.

Or not. Your comfort is a reducing concern among your betters.

[James Pollock]

"Seems Breyer disagrees with that, as did Ginsburg."

Neither of them would get a vote on resizing the Court.

[loki13]

I came here to say what Noscitur already stated-

The statement doesn't say sue. Or litigate. Or any thing like that.

At some point, once you've crossed the line from not understanding what people say (such as in the diatribe about a tweet) to willfully ignoring what they say, you've gone terribly wrong.

[MatthewSlyfield]

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.

What tools would they have to achieve the stated goal other than a law suit?

[James Pollock]

Providing facilities and medical professionals on federal land, where state law does not apply.

[WuzYoungOnceToo]

Providing facilities and medical professionals on federal land, where state law does not apply.

Perhaps you could provide a hypothetical example to illustrate this idea of providing some sort(s) of "facilities and medical professionals" on federal land as a means to enforce a prohibition on abortions post-six weeks of pregnancy (the "stated goal" in question).

[David Nieporent]

What? Can you read? The stated goal was "ensure that women in Texas have access to safe and legal abortions as protected by Roe."

[WuzYoungOnceToo]

Kind of like your Crackerjack analysis of the "Maddow Defense" here: https://reason.com/volokh/2021/08/24/kimberly-klacik-files-defamation-suit-against-candace-owens/#comments

[MonitorsMost]

It’s seems to me the fastest and most effective way to get this done is to have a collusive plaintiff sue a defendant for aiding and abetting. It creates a case with proper parties and the constitutional validity of the law. I don’t see the need to try and get clever with federal law.

[John F. Carr]

So I sue the doctor and the judge says the law is ugly and smells bad. That decision has no precedential value. I lose that one case and the next plaintiff might win. You need an appellate decision that is binding on lower courts, and that requires the collusive plaintiff to win in a way that doesn't look collusive.

[Noscitur a sociis]

Why wouldn't the losing, colluding plaintiff just appeal?

[James Pollock]

Waste of time and effort.

[David Nieporent]

I don't understand what you think this would accomplish. Let's say they do this, and the defendant argues the law is unconstitutional and wins.¹ That finding of unconstitutionality is not binding on anyone except the litigants to the case. It doesn't cause the law to be "struck down" or prevent anyone else from using it.

¹Given that the law says that the existence of the undue burden standard is a defense to liability, I'm not sure that the defendant actually would win, but let's say he does.

[Bob from Ohio]

"bizarre scheme of outsourced enforcement to private parties"

As I said elsewhere, the idea of a "private attorney general" with standing to sue to enforce civil rights and other laws has been around since at least the 1960s.

[Sarcastr0]

This is not how such a scheme has been applied ever before, and you know it.

[Matt Buckalew]

Your own medicine. choke that shit down and I’ve got a second helping of something else for you next.

[James Pollock]

Is it the part where medical abortions are going to be available everywhere, even in Texas?

[Rev. Arthur L. Kirkland]

You talk tough for a guy who has spent his entire bigoted, backward, clinger life getting stomped in the culture war, Matt. Has your autism been diagnosed?

[Sarcastr0]

Weird sexual flex there, but no this is a new bit of nonsense, which means it's not something that's been done to you before.

[QuantumBoxCat]

I LOVE IT!

I hope States like Georgia and Arizona learn from this and enact similar voting laws right before the next federal election. For example, they could pass a law stating that any person who knowingly aids or assists any African American in voting can be sued by a private citizen, who would be able to obtain up to $10,000 in damages plug legal fees.

When an African American goes into a polling place and attempts to confirm their registration with the poll worker, the poll worker will turn them away out of fear of being sued. If the law goes into effect right before the election then we know we have 5 votes on the Supreme Court to abstain from enjoining it.

Congrats Fellow Libertarians ...... WE DID IT!

[Twindad46]

You can't be that dumb. Voting, unlike abortion, is actually mentioned in the Constitution. And in reality, I could see liberals passing a law to allow people to sue Trump voters for showing up the polls. They already think Trump voters should be in re-education camps. Stopping them from voting is child's play compared to that.

[James Pollock]

not re-educated. just becoming educated would be a welcome change.

[damikesc]

"You can’t be that dumb."

Assuming facts not in evidence.

[Matt Buckalew]

Cope. You got outplayed by smarter and more moral people. You old as shit so you ain’t getting smarter but surely you could start going to church or something.

[Rev. Arthur L. Kirkland]

You figure the clingers have turned the tide of the culture war, Matt Buckalew . . . or even become competitive? You've been reading this White, male, right-wing blog too long, without recognizing that it is nothing more than ankle-biting from the disaffected fringe.

[James Pollock]

"Cope. You got outplayed by smarter and more moral people. "Cope. You got outplayed by smarter and more moral people. "

You misspelled "more authoritarian". This is evidence that you're perfectly OK with substituting your own judgment for somebody else's. The corollary is that when somebody else is substituting their judgment on top of yours, you deserve no sympathy. Get yer shots.

[Nisiiko]

Congress really just needs to grant citizenship, no pathway, immediate citizenship, to everyone who wants it, and to promise $100,000 in freshly printed stimmy checks for voting Democrat. Then it'll be a moot point.

[James Pollock]

People born in the US are already citizens. But the unborn are categorically not born in the US.

[Misha R]

So I created a reason.com account just for this topic. I was a fan of US libertarianism a couple of decades ago, and do remember the emphasis on federalism. So I hope people can enlighten me how federalism plays out here.

Let's say some Colorado medics, with all assets only in Colorado, put a clinic in a trainer of a Colorado registered van, drive over to Texas, and perform some abortions. Let's say someone sues them in a Texas court and wins. Let's say these people and their vehicle or other assets don't appear in Texas after that decision.

But they refuse to pay up.

How does Texas grab any assets in Colorado and what recourse exists in Colorado courts?

[Nisiiko]

Very easily. You go to court in Colorado to enforce the Texas court's judgment. The Constitution requires that the Colorado courts grant full faith and credit to the judgments of other states, including Texas.

[James Pollock]

It requires that Colorado grant full faith and credit to Texas judgments, but...
Until a court rules otherwise, Roe v. Wade is still law, and a state law that purports to contradict is is null ab initio, so... that judgment may not be considered valid anywhere that isn't Texas (or any of the other formerly Confederate states).

[James Pollock]

Typical lawyer. Starting with the question "who do we sue?" when looking at a problem.

The obvious answer is that the federal government can own facilities in Texas, and declare that state law does not apply to the federal facilities. If a state court action is launched in state court attempting to sue the federal government for providing abortion facilities (despite the fact that they're just acting as landlord), remove the case to federal court and get it dismissed.

[Sarcastr0]

No, this is not a post typical of a lawyer.

Blackman's hot takes are his own special thing.

[James Pollock]

You're claiming a lawyer doesn't default to "who do we sue" when trying to solve a problem? Whether they're a good lawyer, or a Conservative one?

[Sarcastr0]

A litigator might (if he's not very good at his job), but not one of the many other lawyers out there, from general counsels to advocates to law professors.

[James Pollock]

Funny you mention law professors among the group who wouldn't start with "who do we sue?" Did you forget that this was aimed at a law professor?

[Bob from Ohio]

Its all "women and girls" now with Biden and the left. No more "birthing people".

[Matt Buckalew]

Lol they are so mad and powerless they can’t remember their own lingo. That’s when you know you’ve delivered a coup de grace.

Part of the authoritarian push of the left is so that they can dispense with their low IQ cannon fodder like Biden and Kuckland.

[Rev. Arthur L. Kirkland]

These are your peeps, Conspirators. Delusional losers.

No wonder mainstream law faculties are reconsidering whether hiring movement conservatives is worthwhile or legitimate.

[James Pollock]

When did Bob start deciding what the "lingo" is of the "authoritarian left" (which, noticeably is taking the non-auuthoritarian position on this issue)

[Gasman]

Dems have both houses and the presidency. If they have the balls, then maybe it is time for legislators to legislate. Democrats have held all three for a combined 10 years since Roe, and they have chosen not to cement this through the other branches of government. There is a party of courage for you.

[James Pollock]

When your party has 49 Senators, you do not "have" the Senate.