The Volokh Conspiracy

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Reflections on Texas as a Defendant

Respectfully disagreeing with Josh about United States v. Texas.


As many news outlets report, and as Josh discusses below, the United States has now filed a suit against the state of Texas in federal court, seeking to enjoin the state and its agents from enforcing SB 8. Josh notes a number of possible procedural problems the suit may face, and while I do not think it will be smooth sailing, I think he underestimates how many of those problems are solved by a suit by one sovereign against another.

Let's start with a piece of common ground. Thanks to precedents like United States v. Texas (1892), I think we all agree that the United States can sue Texas in equity without a statutory cause of action and without the interposition of sovereign immunity. That means Ex Parte Young and its limitations are irrelevant. There may well be intricate questions about what kind of equitable relief is available against this kind of enforcement scheme, but it's a lot easier for the courts to focus on that question clearly in this procedural posture.

The other most important change brought by this suit is that there are no individual defendants. The only defendant is the state of Texas. So I think many of Josh's concerns about whether judges are proper defendants, or whether this is really a suit against all of the people of the United States, etc., are less weighty than they may seem. The only defendant is the state of Texas.

To be sure, the government's request for relief against the defendant requests that the relief run against all of the defendant's agents—so it may seem like I am splitting hairs. But formally, that could be an important difference. As I understand the claim, what the United States wants is an injunction that prevents the state of Texas from authorizing anybody to bring SB8 suits, hear SB8 suits, or otherwise treat SB8 as a valid law. Since the only way anybody can get the authorization to do those things is from the state of Texas as a legal entity, it seems like the state of Texas is the proper, and only necessary, defendant.

I don't know whether the United States will ultimately get that injunction, but this seems like the right procedural vehicle to ask for it.