The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Over the past decade, I've lost track of how many case were captioned Texas v. United States. Now, we have the case in reverse: United State v. Texas. The Biden administration has sued Texas over S.B. 8. DOJ explains that "[t]he State of Texas includes all of its officers, employees, and agents, including private parties who would bring suit under S.B. 8." By my count, there are at least ten problems with this complaint.
First, DOJ invokes Shelley v. Kraemer to support a suit against state court judges:
Awarding the monetary relief that S.B. 8 authorizes—to plaintiffs who need not demonstrate any injury or other connection to the underlying abortion procedure—constitutes state activity designed to violate the Fourteenth Amendment rights of women in Texas. "That the action of state courts and of judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment, is a proposition which has long been established by decisions of th[e] [Supreme] Court." Shelley v. Kraemer, 334 U.S. 1, 14 (1948). Thus, while Texas has gone to unprecedented lengths to cloak its attack on constitutionally protected rights behind a nominally private cause of action, it nonetheless has compelled its judicial branch to serve an enforcer's role. "State action, as that phrase is understood for the purposes of the Fourteenth Amendment, refers to exertions of state power in all forms."
I've never been persuaded by the Shelley v. Kraemer argument. The state action in that case involved private citizens going to court to enforce a discriminatory covenant. But there is no allegation that judges would enforce an unconstitutional statute. We presume judges will follow the law. If a state judge tries to enforce an unconstitutional statute, there may be a place for federal courts to intervene. But a remedy at this point is premature. Moreover, judges are improper defendants, because codes of judicial conduct prevent them from opining on the validity of laws that may come before them.
Second, DOJ is about to run into a precedential buzzsaw. Pending before the Fifth Circuit is an appeal from Whole Woman's Health. The three judge panel had issued a temporary administrative stay. And that same three-judge panel will likely hold that the government defendants in that case–including state court judges–have no role to enforce S.B. 8. As soon as that opinion drops, the District Court will be bound by that circuit precedent. All claims against Texas's governmental defendants will be dismissed. At that point, DOJ will need to seek Supreme Court relief. The complaint cites the Chief's Whole Woman's Health dissent several times. But there is no citation of the majority opinion!
Third, the only non-governmental defendants are "private parties who would bring suit under S.B. 8." Are these private parties "officers, employees, and agents" of Texas? I need to give that question some more thought. But let's be clear about who DOJ has sued. The Texas law does not require would-be plaintiffs to be residents of Texas. (Though, to avoid diversity jurisdiction, I suspect out-of-staters would not file suit). In effect, the United States has sued everyone in the United States. And there was no attempt to certify a class under Rule 23. This case really should be captioned United States v. United States. Is there any authority to bring such a suit? DOJ cites none, and I am not aware of any precedent. And a declaratory judgment is only feasible if there can be injunction to back up that declaration. Not even a nationwide injunction would fit the bill here. See Skelly Oil, a case we learned well from the ACA litigation.
Fourth, I will assume that it is proper to sue everyone. If that assumption is right, there would have to be some showing that the unnamed defendant will likely bring suit under S.B. 8. In California v. Texas, there was no evidence that the federal government intended to enforce the individual mandate. How can the federal government show that unnamed defendants are likely to bring a lawsuit? The entire case is speculative. Citations to social media postings by pro-life advocates will not be enough.
Fifth, unnamed people cannot defend themselves in court. They do not receive service of process. They do not have counsel of their choice. They cannot present arguments. They are strangers to the litigation. Yet, under DOJ's theory, people who played no role in the case would still be bound by some judgment. The proposed remedy, if taken seriously, would violate the due process rights of countless people who were unable to participate in the proceedings. Query if I, or others in Texas, could intervene to defend our interests.
Sixth, it is not clear what the United States's injury is here. The federal government, like all plaintiffs, must assert an injury in fact. DOJ asserts some sort of quasi-sovereign interest:
In light of the attempt by Texas to strip its own citizens of the ability to invoke the power of the federal courts to vindicate their rights, the United States not only has a "quasi-sovereign interest in the health and well-being . . . of its residents in general" but also a "quasi-sovereign interest in not being discriminatorily denied its rightful status within the federal system." Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex. Rel. Barez, 458 U.S. 592, 601–02 (1982) (the sovereign maintains an "interest in the health and well-being—both physical and economic—of its residents").
Snapp concerned parens patriae standing for the states. I do not know if this precedent extends to the United States as a plaintiff.
Seventh, DOJ also argues that the United State is injured because S.B. 8 prevents women from vindicating their rights in court. And this argument is premised on the Take Care Clause:
S.B. 8 harms the United States by seeking to foreclose judicial review of a state law that flagrantly infringes the constitutional rights of the public at large and seeks to block the injured members of the public from challenging that law in court. The United States may sue to vindicate its interest in preventing Texas from effecting such a constitutional violation. The President also has the duty to "take Care that the Laws be faithfully executed," U.S. Const., art. II, § 3, a duty that is carried out in part by the Attorney General of the United States. See, e.g., Ponzi v. Fessenden, 258 U.S. 254, 262 (1922).
Does the United States have an interest to ensure that people can vindicate interests in court? Does this interest fit with parens patriae? Indeed, it isn't true that women cannot vindicate their interests. As things stand now, anyone sued under the law would be able to raise Roe as a defense–just like in any defamation case. DOJ is arguing that women have a right to pre-enforcement challenges in court. No such right exists.
Eighth, DOJ argues that the law itself imposes costs on the federal government.
S.B. 8 also increases the costs to federal agencies of carrying out their obligations under federal law to the extent that civil penalties and awards to claimants under S.B. 8 are allowable. In addition, it will increase reimbursable costs under federal contracts with third-party providers. Finally, it will increase costs to the extent that agencies must incur increased transportation and other costs to provide individuals in their care with abortion services outside the State of Texas that are required under federal law but prohibited by S.B. 8.
Laws do not inflict injuries. The enforcement of the law inflicts injuries. If someone actually brings suit under S.B. 8, and inflicts these costs, DOJ could claim an injury. But at this point, there is only speculation. And none of the defendants sued are actually creating these alleged injuries.
Ninth, if DOJ's suit is successful, more than 300 million Americans would be denied the ability to go to court to sue under S.B. 8–even in scenarios where that suit would be consistent with Supreme Court precedent. DOJ presumes that the entire law is unconstitutional. But the statute, which has a detailed severability clause, may be valid in certain circumstances. The proposed remedy would sweep far too broadly, and violate the due process rights of would-be litigants. Merrick Garland, and not Texas, would slam shut the courthouse doors.
Tenth, DOJ has not cited any statutory or equitable cause of action. The federal government cannot simply sue a state based on a concern about ultra vires action. There is no cause of action to challenge ultra vires action. The Supreme Court could have resolved this issue in Sierra Club v. Trump, but litigation mooted out after the election. [Update: Will Baude cites United States v. Texas (1892). That case involved a boundary dispute. The United States has a sovereign interest in that property. And disputes about property were the sort of traditional equitable cause of action that existed in 1789, under Grupo Mexicano.]
This litigation faces a steep uphill battle, that will get even steeper after the Fifth Circuit resolves Whole Woman's Health.