Abortion

Reflections on Texas as a Defendant

Respectfully disagreeing with Josh about United States v. Texas.

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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.

NEXT: Ten Problems with United States v. Texas

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  1. How have the federal courts traditionally gotten around the constitutional claim that states should only be sued in the Supreme Court? The FYTW clause?

    1. The 1892 case of U. S. v. Texas was brought in the Supreme Court in its original jurisdiction.

      1. The Texas law will birth thousands of undesirable, diverse Democrats a year. It will result in a litigation explosion of harassing, bad faith, retaliatory lawsuits, and massive defense costs.

        On the other hand, it serves as a template for self help as a viable litigation tool, useful for many other legal purposes.

        I take no stand on the Texas law, since it is a very mixed bag. The Supreme Court will uphold it. That was why Trump was elected, and later supported by the Evangelicals. Trump is the most effective President in history, even after his departure.

    2. Congress has enacted a statute (18 U.S.C. §  1345) that gives district courts jurisdiction over any case where the United States is the plaintiff. If the case involves the United States suing a state (like this one), then district courts and the Supreme Court have concurrent original jurisdiction.

      1. Right, but how have the courts rationalized that statute?

        1. Article III Section 2 expressly authorizes Congress to make exceptions to and regulate the Court’s original jurisdiction, which is exactly what occurred with 18 U.S.C. § 1345 (giving district courts jurisdiction over any case where the United States is a plaintiff) and 28 U.S.C. § 1251 (providing that lower courts can hear cases where SCOTUS has original jurisdiction except in cases where the dispute is between two or more states, in which case SCOTUS has exclusive jurisdiction).

          1. Article III Section 2 expressly authorizes Congress to make exceptions to and regulate the Court’s original jurisdiction

            It does? Have you read Marbury?

            Article III, Section 2 expressly authorizes Congress to make exceptions to and regulate the Court’s appellate jurisdiction, not its original jurisdiction.

        2. Looking at some of your later comments, it appears that you think the original jurisdiction of the Supreme Court is exclusive. But Congress has authorized lower courts to hear at least some of those cases since the Judiciary a act of 1789, and the Supreme Court expressly confirmed the authority to give lower courts jurisdiction over cases against states in Ames v. Kansas, 111 U.S. 449 (1884). So I’m not sure that your implications of bad faith are well-taken.

          1. This despite the fact that Article III expressly says that “In all cases… in which a state shall be party, the Supreme Court shall have original jurisdiction.”

            One of the more annoying things about courts departing from the text of the Constitution is that you have to do a lot more reading to figure out what the law actually is.

            1. It doesn’t say exclusive original jurisdiction.

            2. Someone got an F- in ConLaw, or maybe didn’t even take it it all!

              1. They don’t give F-minuses. It was just an F, smartypants.

            3. The Supreme Court does have original jurisdiction over those cases. In other words, the U.S. could have brought its case in the Supreme Court originally, if it wanted to. See 28 U.S.C. §  1251(b)(2). How is granting concurrent jurisdiction to other courts “departing from the text of the Constitution”?

              1. Fair enough.

          2. “So I’m not sure that your implications of bad faith are well-taken.”

            My “implications of bad faith” were when some guy said I was invoking the 11th Amendment and that I might be some kind of “sovereign citizen,” when I hadn’t said such things at all, or even hinted at them.

            You’ve simply repeated the remarks above that Congress, with Supreme Court approval, has done certain things. I asked simpy “Right, but how have the courts rationalized that statute?”

            Your discussion of how the courts justify their decisions is simply to repeat that that’s what they decided. So, in short, you too are making the equivalent of the argument that “the Bible is the word of God because it says so in the Bible.”

            1. If you actually have some explanation for why the Federalist Papers 81 was wrong to give the following assurance, furnish your evidence:

              “The Supreme Court is to be invested with original jurisdiction, only “in cases affecting ambassadors, other public ministers, and consuls, and those in which A STATE shall be a party.”…In cases in which a State might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal.”

              https://avalon.law.yale.edu/18th_century/fed81.asp

              Just say “The courts were justified in breaking The Federalist’s promise to the voters because…” and fill in the blanks with your no-doubt incontrovertible answer.

  2. I appreciate this concise, and presumably correct, antidote to all of the words that Josh has just vomited across the blog.

    1. and presumably correct

      Who says blind faith is just for the religious?

    2. I mean, he admits he’s splitting hairs. Because, you know, he is.

      I’m a citizen of Texas and as is I can ignore the new law. Whatever comes out of this lawsuit will be binding on me as a target of the lawsuit. Who knows what that could be?

      Why

  3. Prof. Blackman, as much as I admire his scholarship and willingness to put himself out there for critique and criticism is basically arguing from his personal bias, not from a basic legal premise.

    It is clear that Prof. Blackman is anti abortion rights. So he see his job not to present a clear, concise, valid analysis of the legal framework, but to argue one side, to advocate for, in this case, the defendant. It is clear he wants his real role to be counsel for the state of Texas, and so his points must be taken with that in mind, that is, a legal position in support of one party.

    1. Or we could just read and consider his arguments as well as arguments of those who disagree with him on their respective merits, if any. Granted, it’s hard to keep one’s own rooting interests from affecting one’s analysis (witness, in a non-political context, how the fans of the other 31 NHL teams fail to appreciate what a fine fellow Tom Wilson is because of their rooting interests), and readers should indeed be aware of how those interests might affect a given writer’s arguments. But that shouldn’t be the sole, or even principal, lens with which we examine the arguments.

    2. It may be that Prof. Blackman is anti-abortion, but the problem for Prof. Baude is that a majority of the Supreme Court is also anti-abortion. They might be constrained by precedent on some issues, but this case presents plenty of novel issues. So, as a legal realist, who believes that the law is nothing other than what the courts say it is, I don’t find the complaint very persuasive.

      My view is that the only procedural avenue for challenging SB 8 is defensively, when a defendant who is sued by a private plaintiff asserts that the statute is unconstitutional. That defendant may well win. If in the meantime, abortion providers in Texas are chilled, so be it: fiat justitia, ruat caelum.

    3. Why is it that you admire Blackman’s scholarship?

  4. Is there a precedent, though, for suing a state not as the enforcer of a law, but as the entity that passed the law? Is the United States’s proposed remedy essentially a requirement that Texas repeal the law? (How else did it authorize anyone to sue other than by passing a law?) Does that present any 10th Amendment problem?

  5. Unless private individuals are held to be agents of the State of Texas, how can they possibly be bound by any declaratory judgment or injunction that comes out of this case?

    1. They pretty clearly are agents of Texas, are they not?

      1. Under what creative definition of agency?

        1. The Texas law makes us agents, if we choose to be.

          The DOJ suit will bind us under the assumption that we would have chosen to be agents of the state, which the vast majority of us would not have chosen to be on our own.

        2. Texas has outlawed abortion after roughly six weeks, and has deputized private individuals to enforce that ban. I mean, sheesh, people who defend Texas’s law cite the concept of “private attorneys general.” Who do AGs act on behalf of?

          1. and has deputized private individuals

            Yawn. Prejudicial, self-serving characterizations do not a legal argument make. Would you like to be the one to belly up to the bar and show us how these private individuals satisfy the legal requirements of agency?

            1. They are acting on the state’s behalf to enforce a public policy. They have no private injury from an abortion taking place. True, they get $ 10k in statutory damages, but that is in no way tied to any harm to them as individuals.

              1. Once they act, maybe. They’re not the state’s agents prior to that, so how can they be a party to a lawsuit premised on that?

                Basically everybody in the country is able to bring a lawsuit under this law, so everybody is a party to the suit on the basis that they might at some time decide to become an agent of the state?

                1. Once they act, maybe. They’re not the state’s agents prior to that, so how can they be a party to a lawsuit premised on that?

                  Who said that they were a party to the lawsuit? Injunctive relief against a party binds its agents — future as well as current —without them actually being parties.

                  Think about it for more than ten seconds, if that doesn’t exhaust your understanding of legal principles. I sue Moderna for implanting Bill Gates’ microchips in its vaccines, and get a permanent injunction from the court ordering them to stop doing that. Who is that injunction binding on? Moderna’s current agents — even though they weren’t explicitly named in my suit — and also anyone who becomes Moderna’s agent in the future. It doesn’t stop Random Person Walking Down the Street Brett Bellmore from whimsically putting microchips into vaccines, but the exact instant in time you start working on behalf of Moderna, you also become bound by the injunction.

                  1. Sorry. OT. But you can’t sue Moderna. Their “vaccines” is available under a EUA, which immunizes the company from legal liability. That, BTW, is why there are now two, almost identical, Pfizer vaccines, one readily available under a EUA, the other approved by the FDA and available to the public in maybe 2024.

                    1. So what? His point still holds. An injunction binds a party and its agents, present and future. If someone gets an injunction against a corporation, and then new management comes in, they are bound to follow the injunction, or face contempt. For that matter, if the State of Texas were enjoined, and then a new AG came into office, he would be bound same as the old one. If private plaintiffs are essentially private AGs (and I think they are), then they are bound.

      2. That, to my mind, is the rub. The Government is going to have to show that. There is a colorable argument for that. This is not a private civil suit to redress an injury, as would be, say, a contract or tort action. It is an enforcement of state policy. A private plaintiff is no more injured by an abortion than the general public is. The remedies are an injunction and statutory damages, which are not pegged to any damages of the private plaintiff. Were I arguing the case, I would argue that this is essentially a qui tam suit, except the plaintiff gets to keep all the damages (as opposed to qui tam where he merely gets a cut.)

        But as I said, this is sailing in uncharted waters.

        1. Indeed these are unchartered waters. But so too is the scheme Texas cooked up. As such, the courts should grant the temporary injunction DOJ seeks and proceed to full briefing and argument. As Baude points out, the previous procedural stance adopted by SCOTUS that foreclosed pre-enforcement (because no state entity was enforcing the law) is not an issue and thus hasty reliance on it in the shadow docket should be dismissed.

          1. Except that there are no actual parties, nor any damage, until suit is fled under the law. No Case or Controversy.

            1. I thought the parties were The United States of America (plaintiff) and The State of Texas (defendant).

              1. Except that the state of Texas cannot be a party because they cannot bring suit under the law. And then, the idea seems to be to bind the entire country with injunctive relief as agents of the state of Texas.

          2. Bad Josh R. Bored Lawyer correctly said “uncharted,” and you turned it into “unchartered.” (A pet peeve of mine.)

            (Also, SCOTUS did not issue any ruling foreclosing pre-enforcement.)

            1. It appears to me they foreclosed pre-enforcement challenges in federal court.

              1. They did not. They said that these plaintiffs hadn’t met their burden for injunctive relief or to vacate the 5th Circuit’s stay “in light of” “complex and novel antecedent procedural questions” presented by the case, which they said were “unclear.”

                A court denying an emergency request for injunctive relief is not a ruling that no such injunctive relief is ever available to the plaintiffs. (Let alone to other plaintiffs.)

            2. If its unconstitutional, it’s arguably unchartered as well.

          3. The fact that Texas thought of a very novel means to effectuate policy doesn’t grant federal courts any more or less ability to enjoin anything.

            The law is still subject to challenge, just possibly not in federal court before an actual case presents itself.

            Texas fashioned it’s law based on precedent. Those who demand lower courts ignore precedent as to procedures concerning federal injunctions because they support precedent on abortion rights are hypocrites.

            In any event, in my opinion, the biggest issue with Texas’ novel approach is that it could be used by other states on matters such as gun control and speech, and result in ever increasing escalation.

            1. Garland’s suit gets around those precedents.

              1. Possibly. Nothing like this has happened before, and the Supreme Court has already indicated it’s disinclined it offer interim relief.

                If the Court curtails abortion rights in the Mississippi case, the issue might soon be moot as Texas would likely repeal the law to conform to the new restrictions.

              2. More accurately, Garland’s suit TRIES to get around the very apparent procedural and Due Process issues through clever lawyering. We don’t know if the DOJ will succeed, or be sanctioned for making arguments a 1L would know better than to make. That the Conspirators are split here is strong indicia, at least to me, that Garland maybe reaching too far here. We shall see.

  6. US v. Texas (1892) is essentially an action to quiet title between two sovereigns who claimed ownership, Texas and the US. That’s a far cry from an action in equity to restrain the operation of a law where the state is not the one enforcing it.

    1. Suppose for the sake of the argument that a plaintiff successfully sues a defendant under SB 8 and a judgement is entered.

      Who enforces the judgement? Someone other than the state? Who, pray tell?

      So how do you arrive at the conclusion that “…the state is not the one enforcing it.”?

      1. That is true of every civil judgment. If I get a money judgment against you for breach of contract, or for negligently driving your car into mine, unless you pay up voluntarily, the enforcement will be through the sherriff. That does not make the suit one between the state and the defendant.

        1. Yes, the suit is not between the state and the defendant. But the state (i.e. the sheriff) enforces any judgement making the state the ultimate enforcer of the statute.

          Maybe Texas can kick that accountability can down the road, but ultimately it becomes a state actor enforcing a clearly unconstitutional law.

          1. That is then. Now is now. And the harms claimed are mere conjecture.

            1. That’s a pretty asinine argument in this context, especially where Supreme Court precedent has held otherwise

          2. Well, yes, that’s the argument: They’ve kicked the can down the road, and the law can’t be enjoined until we catch up with the can.

            As soon as somebody brings the lawsuit, the defendant can move to have it dismissed, and THEN you get your case.

            1. Guys, please just let us sue one abortion aider and/or abettor!! Just one! That’s all we want!!

        2. That is true of every civil judgment.

          Which is why Shelley v. Kraemer and NYT v. Sullivan are things. States enforcing civil judgments = state action.

          1. I don’t doubt it. But those were private disputes which involved private claims. The state action doctrine allowed Constitutional provisions to limit the reach of private claims.

            Here, the whole suit is between sovereigns. Could the U.S. have sued the state of Alabama to declare its libel laws overbroad? Or sued the State of Missouri to have its restrictive covenant laws declared unenforceable?

            That would be the analogy to this case. And why I don’t think those cases are all that helpful here.

            1. Could the U.S. have sued the state of Alabama to declare its libel laws overbroad? Or sued the State of Missouri to have its restrictive covenant laws declared unenforceable?

              I don’t know. Pretty sure this was not covered in any class I took in law school. My point was not that the U.S. is going to win this suit, but just that there is ultimately state action at play in enforcing SB8.

  7. Fortunately, Tribe has endorsed this lawsuit so I’m sure it will be successful — even if it makes it up to the Supreme Court.

    This clearly meritorious DOJ complaint is brilliantly crafted and should withstand the strongest defenses Texas and its agents, including the private vigilantes the State sought to deputize through SB-8, can possibly mount against it. Great job by the AG.
    https://int.nyt.com/data/documenttools/justice-department-lawsuit-texas-abortion-law/d016174e3d19703e/full.pdf

    1. That’s the annoying point – it should be in the Supreme Court from day 1.

      I had thought the Constitution assured the states that their cases would be heard in the highest federal tribunal, not inferior ones. Of course, I didn’t write the precedents, so I guess my opinion isn’t worth a flea’s fart.

      1. State sovereign immunity does not extend to cases where a plaintiff alleges the state’s action is in violation of the federal or state constitutions.

        Feel free to read the Jurisdiction and Venue section of the filing and tell us, exactly, what they got wrong.

        https://int.nyt.com/data/documenttools/justice-department-lawsuit-texas-abortion-law/d016174e3d19703e/full.pdf

        1. What does sovereign immunity have to do with his question? He is saying that the Supreme Court should be the venue.

          1. I understand that’s what he’s saying. What I’m wondering is what legal basis he’s using for that opinion.

            The 11th Amendment? That’s not how I read it.

            Something else? What?

            As far as sovereign immunity goes, I figured that was what he was on about, but who knows. Maybe it’s some kind of sovereign citizen argument.

            Anyway, when I asked what, exactly, the filing got wrong about jurisdiction and venue, I got called a “numbskull” rather than addressing the question.

            1. The Constitution of the United States of America, Article III, Section 2, second paragraph, first sentence.

            2. To be fair, you are a numbskull.

              “Maybe it’s some kind of sovereign citizen argument.”

              And maybe you have a brain rather than a random collection peanut shells stuffed in your skull.

              Or maybe you should shove it up your ass.

        2. I said I didn’t write the precedents, genius.

          And I said nothing about sovereign immunity, numbskull.

        3. “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.”

          1. And yet there’s clear precedent for suits by the US against a state to start in US District court. Even if they eventually wind up in the Supreme Court.

            “Because States have no sovereign immunity as against the Federal Government, any state rule exempting the sovereign from the payment of prejudgment interest not only does not apply of its own force to the State’s obligations to the Federal Government, but also does not represent a policy that the Federal Government is obliged to further.”

            West Virginia v US
            https://www.law.cornell.edu/supremecourt/text/479/305

            The SCOTUS affirmed the district court ruling without a peep about jurisdiction or venue.

            1. I acknowledged the precedents, I wondered if there’s any particular reason behind them beyond “fuck you,” which by coincidence is just what you should do to yourself.

              1. Your reasoning is on the order of “Teh Bible is the Word of God because the Bible says so!”

                Trying to find some sort of legal justification for a precedent seems beyond your powers. You are abysmally ignorant.

      2. Article III Section 2 expressly authorizes Congress to make exceptions to and regulate the Court’s original jurisdiction, which is exactly what occurred with 18 U.S.C. § 1345 (giving district courts jurisdiction over any case where the United States is a plaintiff) and 28 U.S.C. § 1251 (providing that lower courts can hear cases where SCOTUS has original jurisdiction except in cases where the dispute is between two or more states, in which case SCOTUS has exclusive jurisdiction).

        1. In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

          I dunno, man. If it’s been rationalized this lets the Congress alter original jurisdiction, that seems a stretch. What am I missing about that being applied only to all other cases?

      3. I had thought the Constitution assured the states that their cases would be heard in the highest federal tribunal, not inferior ones.

        Why?

        If you want to read Article III as granting exclusive jurisdiction, I suppose that’s a relatively rational justification for it. But given that from the first Congress on, that doesn’t seem to have been the reading of that clause, do you have some basis to conclude that that’s actually what that clause was supposed to do?

        1. “The Supreme Court is to be invested with original jurisdiction, only “in cases affecting ambassadors, other public ministers, and consuls, and those in which A STATE shall be a party.”…In cases in which a State might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal.”

          ./ Federalist 81

          https://avalon.law.yale.edu/18th_century/fed81.asp

          1. Are you thinking of the Judiciary Act of 1789?

            “SEC . 13. And be it further enacted, That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction.”

            https://avalon.law.yale.edu/18th_century/judiciary_act.asp

            Does this mean concurrent jurisdiction with inferior federal courts…or concurrent jurisdiction with the state courts?

    2. Sarcasm? Tribe has become a complete hack.

      1. In other words, he’s a typical liberal.

        1. They can’t all be Eastmans, Dershowitzes, and Blackmans.

          Or Giulianis, Powells, and Woods.

  8. <

    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.

    Uh, huh. And when lawsuits enforcing the Fetal Heartbeat Act go forward anyway, I guess the court will jail the State of Texas for contempt of court.

    1. So you think state courts in Texas will ignore federal courts’ rulings?

      Well, ok then….

      1. Isn’t ignoring federal court rulings all the rage these days? If it works for Biden….,

    2. They would hold the specific state agent violating the federal court order in contempt. Not that deep.

    3. Fetal Heartbeat Act

      It’s not a fetus at 6 weeks. It is an embryo.

  9. As cases like Shelley v. Kramer illustrate, for a serious, systmatic violation of core constitutional rights, the Supreme Court does not to let procedural niceties get in the way. And having the U.S. sue Texas directly gets around both standing and sovereign immunity issues.

    So I think that if the Supreme Court finds procedural obstacles, that’s a sign that it doesn’t regard this situation as a Shelley v. Kramer situation, which means it is likely to step back from Roe a good deal when it comes to a decision on the merits.

    1. In Shelley v. Kraemer, the Court ruled that state enforcement of a racially restrictive covenant violated the Equal Protection Clause, but that was a case where it had already been enforced against the Shelleys.

      There are two relevant differences here: First, Texas has not enforced S.B. 8 against anyone yet, so there is no actual case or controversy that is similar. Second, there is not an established right to perform or assist with an abortion, so the people who might eventually have an actual case or controversy need to show such a right.

      1. Second, there is not an established right to perform or assist with an abortion, so the people who might eventually have an actual case or controversy need to show such a right.

        I gotta say, if there is a right to have an abortion, there has to be a matching right to perform one. Otherwise you could read any right completely out of existence. A Federal law could require states to tax 100% of the value of any home where the owner refused to voluntarily allow quartering of soldiers…

        1. Yes. You can own a gun, but nobody is allowed to sell you one or provide a place for target practice or sell you ammo or each round of ammo costs $5k. You’re trying to read the right out of existence.

        2. As PeteRR alluded to, Second Amendment precedents disagree with you. There’s no general right to sell firearms or ammunition to the public, and a number of cities have effectively regulated those stores and gun ranges out of their borders.

          1. 2nd amendment jurisprudence is still stuck in a ‘just after Brown’ status; After almost 80 years of refusing to take 2nd amendment cases after Miller, (Literally, if either of the parties raised the 2nd amendment as an issue, the Court refused cert. without comment for 79 straight years!) the Court knocked off a couple of cases admitting that, yes, it was an individual right, and, yes, it was incorporated against the states.

            Then went right back to ducking the issue.

            In those 79 years a hell of a lot of ‘Jim Crow’ accumulated, laws that are flatly inconsistent with that status as an incorporated individual right, that the Court hasn’t cleared away yet.

            Doesn’t mean they’re constitutional, just that the Court hasn’t gotten around to them yet.

    2. As cases like Shelley v. Kramer illustrate, for a serious, systmatic violation of core constitutional rights, the Supreme Court does not to let procedural niceties get in the way.

      I wouldn’t quite put it that way, but yes. I would say that the Supreme Court creates doctrines and legal fictions from time to time to address novel circumstances, and therefore saying, “Well, there’s no existing doctrine under which we can fit this case” does not end the analysis.

      And I suspect — for the reasons previously discussed — that the Supreme Court is not going to want to accept the notion that a state can outlaw something which is constitutionally protected and then create a scheme to prevent it from being challenged. (If this case comes to the Court in more regular order, there will be plenty of amicus briefs pointing out the parade of horribles addressing issues besides abortion.) And it will craft whatever doctrine or legal fiction is needed to prevent that.

      Ex Parte Young was not engraved in stone tablets handed down at Sinai. It was written by an earlier Supreme Court. And if it needs to be revised, narrowed, expanded, or altered to encompass situations like SB8, then this Supreme Court can (and likely will) do so.

      1. Pretty much. As I’ve written, this will only preserve the law against review until somebody sues somebody, then it’s on a fast track to the Supreme court.

        Where, ideally, the Court rules that no, you can’t do this sort of thing, but that Roe was a really bad mistake that we’re going to correct.

        Ideally. Not what I’m expecting, the Court is really stubborn about not admitting prior rulings were mistakes.

    3. As cases like Shelley v. Kramer illustrate, for a serious, systmatic violation of core constitutional rights, the Supreme Court does not to let procedural niceties get in the way.

      Shelley v. Kramer was a group of suits that were originally filed by property owners seeking to enforce the racially restrictive covenants against black purchasers. What procedural niceties did the Supreme Court ignore? And how do they suggest that the constitutional arguments against the validity of a cause of action can be raised preemptively, instead of as a defense after the claim is actually filed?

      1. Because up until that point a private contract had been uniformly understood to be private action, not state action.

        The Civil Rights Act has a number of exceptions nad explicit compromiss. For example, it doesn’t apply to small companies, or in somecases where a company has “legitimate” business interests.

        Courts have never said that where there’s an exception or compromise in the Civil Rights Act that lets a private business do what a state can’t do, taking advantage of that compromise somehow makes the company’s action state action, even when the state is enforcing the employment contract or upholding the company action or policy.

        For example, just recently AirBnB won a case on grounds that the Fair Housing Act doesn’t apply to rentals of private homes, so AirBnB people get to discriminate to their hearts’ content. There was no suggestion that enforcement of this discrimination would constitute state action.

        That is, Shelley v. Kramer has never been applied outside its original context, even in matters of housing discrimination.

        1. It’s at the very end of the opinion, which is lokg and mostly about whether the dispute could be arbitrated. But it’s there.

          “Even if the true name policy had such a disparate impact, liability under Title II attaches only in the context of a public accommodation and liability under the Fair Housing Act does not apply to single family residences…”

  10. I super appreciate this post by Baude. I love this blog when its authors are speaking to and against each other.

    More debate please!

  11. They would hold the specific state agent violating the federal court order in contempt. Not that deep.

  12. Yeah, I think that is reasonable.

    Actually, I do have a question. Suppose I am a company and I have the potential to be sued in a qui tam proceeding for some way fraud issue. My claim is that the thing in question isn’t really fraud, it is a true statement that is protected by freedom of speech.

    Like these sorts of cases happen all the time right? Someone files a class action saying this was misleading, response is no it was perfectly clear, and I had the right to say it. Let’s just apply that to a Qui Tam proceeding where the United States deputies people to look for fraud.

    I want a pre enforment injunction against a specific type of said proceeding I think violates my first amendment rights. Suppose the government uses a definition of fraud that precludes me saying true things (again, this sort of thing seems to happen all the time.) Who do I sue?

    I would sue the United States right? Now, yes soverign immunity is a thing, but if the government waives it, as I believe it has, there is no issue. The people who are suing me do so on behalf of the United States. Obviously. Because otherwise, it would be unconstitutional at the federal level to do this (citizen standing and all that.) So I can easily sue the government directly.

    Now, standing isn’t an issue here, but one can easily generalize to say yeah they are suing on behalf of the US.

    The question is, if this does happen at the federal level, I can sue the US right? If not, I do not think you can sue Texas. If so, then you probably can.

  13. Perhaps someone can explain why this isn’t a simple argument:

    Texas is granting authority to curtail Constitutional rights which it has no authority to grant, because those actions would be illegal.

    If Texas has no right to limit abortion, or to sue those who seek abortions, in this manner, then how can they possibly have the authority to grant such a right to others?

    What isn’t yours to exercise certainly isn’t yours to give.

    1. You are missing the point. Nobody, so far as I know, is saying that the law passes constitutional muster.
      The question is, what can be done about it?
      The DOJ “suing” “Texas” is deeply questionable because Texas has not done anything. The US cannot show harm, and it is not clear what redress the DOJ could receive.
      “Declaring a law null and void” is not something that Federal courts usually do, certainly not without a case or controversy.

      1. Plenty of people are saying it passes constitutional muster. Nobody I know of is saying it passes Supreme court precedent muster.

        Since the Supreme court is capable of making mistakes, and even on rare occasions correcting them, these aren’t the same thing.

        1. Are those “plenty of people” that are saying it “passes constitutional muster” more likely to be correct than the Supreme Court? What exactly is the difference between “constitutional muster” and “Supreme Court precedent muster”?

      2. You are missing the point. Nobody, so far as I know, is saying that the law passes constitutional muster.
        The question is, what can be done about it?

        So, is that the answer then? The Texas GOP found a loophole in the Constitution, and it gets to exploit it?

        1. Federal courts get to officiate the question when there is an actual, as opposed to speculative, case or controversy. Who has filled suit under this new law? What state official has done anything to enforce a judgment under it?

          1. Your answer to my question is yes, then. The Texas government gets to intimidate clinics into not providing abortions due to the fears of the costs of defending lawsuits. (Yes, this is actually happening.) All without them being able to challenge that law, because then no one would be suing them.

            Congratulations are in order to the Texas GOP, it seems. They have successfully found a loophole in the judicial system of the United States that allows them to scare people into not doing something that the courts have consistently said they have a right to do without those people being able to challenge that action in court.

            1. It’s really too bad that federal courts are the only courts in the country, huh.

              1. So how is it going for these clinics in the Texas state courts?

      3. The DOJ “suing” “Texas” is deeply questionable because Texas has not done anything.

        Sure it has. It has authorized people to act as its agents in enforcing its law outlawing abortion after about six weeks.

        If Texas of an earlier era passed a law authorizing anyone in the state to lynch a black person who tried to vote, do you think the courts would say, “Well, Texas hasn’t lynched anyone, so we can’t do anything. We have to wait until someone attempts a lynching, and then we can enjoin that person”?

        1. Lynching is illegal.
          Filing a lawsuit is very legal.
          I can sue you because you lack a third arm. Its stupid but that’s for the court to figure out. Not SCOTUS

          1. Um, no, the premise of my hypo was that Texas authorized the lynching; it’s not illegal.

  14. I will respectfully disagree with Prof Baude here. The basic problem with abortion jurisprudence is that the anti-abortion wing of the Supreme Court are the conservatives who respect and honor precedent. Roe and Casey are seen by them as binding precedent, which they may not like, but feel compelled to support and apply.

    Now the AG and his DOJ come along, and try to do an end around run against an innovative TX law, by essentially upending centuries of precedent on standing and agency. The conservative answer to this suit is just that, to point out that there is not yet a Case or Controversy, that any damages claimed by the US are speculative, and claiming that the population of this country are agents of the state of TX, and thus bound by the sought for injunctive relief, blows up the centuries old definition of agency. All 5 Justices need to do to reject the injunctive relief, and pursue their Roman Catholic anti abortion sentiments, is to enforce long standing precedent on standing and agency.

    1. First of all, the Supreme Court is not involved yet. Second, The sentence must’ve been fun to write as an exercise in projection:
      “Now the AG and his DOJ come along, and try to do an end around run against an innovative TX law, by essentially upending centuries of precedent on standing and agency.” The state of Texas is trying to do an end around run against long-standing precedent. Finally, this a facial challenge by the United States to the constitutionality of a state statute so issues of standing and article III jurisdiction satisfied satisfied.

  15. If this “vehicle” is allowed, doesn’t every single federal lawsuit against allegedly-unconstitutional state laws use it, regardless of who actually enforces it, regardless of whether it is being enforced, etc.?

  16. Wouldn’t it be better for an abortion to be performed, then have a person bring a SB8 civil action action against a person who advised an abortion. Since the law doesn’t implicate everyone involved just Both persons would be part of the same group and making a test case to show actual injury. Then standing and agency all those things can be implicated instead of this legal slippery slope that is probably going to be refuted but waste a lot of time.

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