Ten Problems with United States v. Texas

This case really should be captioned United States v. United States.

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Over the past decade, I've lost track of how many case were captioned Texas v. United States. Now, we have the case in reverseUnited 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.

NEXT: The United States sues Texas Over S.B. 8

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  1. The best part of this will be watching how quickly Blackman and the other members of Clinger Litigation: Elite Strike Force turn 180 degrees if an advanced state follows Texas’ lead and enacts a statute that makes life similarly miserable for gun owners, faith healers, gun sellers, televangelists, White nationalists, or lawyers who are Federalist Society members.

    1. Will you similarly turn 180 degrees in defense of those law?

      1. “Will you similarly turn 180 degrees in defense of those law?”

        No. I not only dislike (and consider weak, if not counterproductive) these procedural shenanigans, but also have the luxury of a strong expectation that my preferences will be vindicated in the normal course as America continues to improve. I see no need for (and substantial danger associated with) desperate measures.

        1. The core problem here is not that the law is designed to be hard to enjoin. The core problem here is that this particular legislature saw no harm in passing a statute that was blatantly unconstitutional when passed.

          When a similarly-hard-to-enjoin bill is passed somewhere that prevents gun possession by right-handed people (since right-handed people commit most of the felonies that involve using a gun), and the chorus of” “b-b-but Heller! Haven’t they ever heard of the second amendment?” that’ll be worthy of a “wonder if anyone learned anything from this” chuckle, along with a bit of concern for the lack of respect for rule of law in the state legislatures. Both of those things can happen at the same time.

          1. A sinister take.

            1. No, the left-handers really do account for a small portion of crimes.

    2. This is the reason I find this law so diabolical. Diabolical because it is crafted to be almost unassailable. At the same time the potential effects on other Enumerated Rights is truly frightening, You mention the 2nd Amendment but really pretty much the entire Bill of Rights and beyond are at least theoretically on the chopping block. Any State Legislature with a cause and an axe to grind could do an end run around any Right and that should scare the hell out of everyone Left or Right.

      1. Any State Legislature with a cause and an axe to grind could do an end run around any Right and that should scare the hell out of everyone Left or Right.

        An “end run” that will itself end immediately after someone actually files one of these suits.

        1. One can hope. Still it should be interesting considering civil actions are not usually subject to judicial review.

          1. What? Civil actions are not subject to judicial review? Try Shelley v. Kraemer or NYT v. Sullivan.

            1. Poor word choice on my part. Chalk it up to my being sick as a dog when I posted. What I meant to say was in civil matters people can sue for virtually anything under the sun, referencing the Fetterman misquote about suing a ham sandwich.

              1. Frivolous claims can sometimes be dismissed at the outset, saving the cost and effort of defending.

              2. I’m still not following.

                Imposing damages on a civil defendant in these circumstances pretty clearly unconstitutional under existing Supreme Court precedent. And if one of thee cases makes it to the Supreme Court and that precedent gets overturned, then the “problem” is that substantive decision, not the procedural novelty of this legal regime.

  2. To all menstruating people—younger eggs are better than older eggs. You will most likely get divorced. No future partner in America cares if you have children. Trump and Biden both have children with multiple partners from multiple marriages. Jill Biden even became a doctor after having a baby!

    1. ” Trump and Biden both have children with multiple partners from multiple marriages. ”

      So? Is that an especially weird public service announcement from a Catholic or evangelical, tone-deaf perspective?

      And Biden’s wife died in a vehicular accident, as I recall. Trump cheated on his wives, then abandoned them for increasingly young and dumb replacements. Joe Biden does not deserve to inhabit a sentence with Trump in that context. Jill Biden does not deserve to inhabit a sentence with Trump’s wives, either.

    2. Is Professor Blackman single?!??

  3. “Though, to avoid diversity jurisdiction, I suspect out-of-staters would not file suit”

    But a citizen of Texas cannot remove a case filed in Texas on the basis of diversity jurisdiction. So, why wouldn’t an out-of-stater sue?

    1. Why couldn’t they? Diversity is about the parties, not the state court where suit was brought

      1. The forum defendant rule is about the citizen of the parties AND the state court where suit is brought.

        1. Fair enough. I thought he was saying it actually affects the diversity analysis rather than just that diversity doesn’t get you into federal court. Though of course the forum defendant rule is subject to snap removal still so if the defendant is on the ball it wouldn’t stop it.

      2. Under 28 U.S.C. §  1441(b)(2), a defendant who is from the state where a suit was filed cannot remove the case to federal court based on diversity. (I’m also somewhat dubious that many of these cases would reach the jurisdictional threshold, especially is pled by a plaintiff who wanted to stay out of federal court, but I suppose the attorneys fees provision makes that less certain.)

        Another illustration of why there might be a benefit to preferring law professors who have actually practiced law.

  4. “judges are improper plaintiffs, because codes of judicial conduct prevent them from opining on the validity of laws that may come before them.”

    Judges are plaintiffs? In which lawsuits?

    1. “Judges are plaintiffs? In which lawsuits?”

      The ones where they’re trying to collect the abortion bounties, by suing someone who was involved, in some way, with a woman seeking a post-6-week abortion, potentially.

      I’m looking forward to seeing some of the lawsuits. Will someone try to sue an airline, for transporting a pregnant woman out of Texas? She might get an abortion during her vacation to Disneyland!

  5. Remarkably absent from Professor Blackman´s analysis is any detailed citation of legal authority.

    1. That might be a trenchant criticism of a brief written a couple of weeks after the suit was filed. But this was a blog post written an hour or so after it was filed. Even if you don’t agree with it, perhaps especially if you don’t agree with it (or are a DOJ attorney trying to persuade the judge that there are no problems with the suit), initial issue spotting of this kind is valuable even if some of the issues turn out to be blind alleys when researched.

      1. The thing about “issue spotting” is that a person motivated enough to spot issues can spot issues that aren’t actually present.

        1. I used to spot a lot of potential issues that might bedevil my cases (back in the day when I was practicing) most of which were either not difficult or, on reflection, not even present. But the process helps you find the issues, including sometimes not obvious ones, that are present. And it sometimes leads to better or more precise framing. If my opponent posted something like this online, I would be grateful for the help.

          1. Would you farm out issue-spotting to someone else?

            1. No. (Generally no. On some “team” cases, which I was not fond of working on until later in my career when I saw the errors of my ways and [sometimes] managed to play well with others, someone would suggest divisions of labor. Even so, I think everyone was free to brainstorm on all parts of the case, which tended to be connected in ways the initial division might not have foreseen in any event.). But absolutely, I would accept others’ ideas and help for issues to look at.

    2. “Remarkably absent from Professor Blackman´s analysis is any detailed citation of legal authority.”

      You mean the type of work a reasonably competent law professor might undertake to perform?

  6. “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. ”

    Here’s your problem- you are thinking about this like a professor and not a lawyer. “going to court” and “enforcement” are two totally different things. The cost of defending oneself in court from an unconstitutional law is still damaging to a defendant. Without some ruling from a federal court saying “no one can bring these and if they try they must be immediately thrown out” is a big deal. And that’s why Shelley v. Kraemer is quite apt, and why this will go forward, assuming the judges still recall what being a lawyer is like.

    1. It’s Texas, and they’ve already chosen to ignore federal court rulings that weren’t what they wanted. So the expectation that losing this lawsuit would have any effect in Texas is amusing.

      Would the Hyde amendment preclude allowing gynecologists to practice reproductive law on federal reservations, such as (say) all those military bases in Texas.

      Alternatively, when push comes to shove, what happens when the Biden administration withdraws all the border protection agents to the Oklahoma border?

    2. And that’s why Shelley v. Kraemer is quite apt

      Why is that, exactly? If Shelley v. Kramer had been brought by would-be black purchasers seeking to invalidate racially restrictive covenants, I think you’d have a pint. But instead it was an enforcement action (actually, two consolidated actions) brought by the homeowners trying to enforce the covenants, and the constitutional invalidity of the covenants was raised as a defense. That seems pretty squarely analogous to a defendant raising Roe and Casey as a defense if someone actually brings suit under SB 8.

  7. Since this is abortion, and since the courts are willing to wreck any precedent in order to save it, I’m curious as to how they’re going to rewrite the Constitution, Federal Law, or some combination of both.

    1. Obviously, they’re going to rewrite the amendment section, so that any state legislature can override the Constitution on a simple majority vote (coincidentally, they will also support the state legislatures’ powers to disenfranchise any citizen at will.)

      Alternatively, we could retroactively accept Texas’s declaration of secession, and build a big, beautiful wall.

  8. Josh Blackman is pathetically biased in favor of anything advocated by the Trump Right. He would be an embarrassment to the Volokh Conspiracy except for the fact that Eugene Volkh is almost as bad. Sad!

    1. Sad?

      This blog (and Trump, and Liberty University, and the insurrectionists) is the best America’s vestigial right-wingers can muster these days.

      Not sad . . . Happy!

      1. They picked Trump to lead them, so they are doomed to fail. But maybe the next guy will be competent to lead.

    2. Poor Volokh! He used to be one of the best. Then he started his posts about the second amendment and that seemed harmless enough but the next thing you know he’s on Reason writing about how the internet shouldn’t be free. He made a hard right during Trump, and I think we can all guess why- when all your friends start saying things that are crazy, you can either lose your friends or lose your mind. He chose the latter.

  9. When does legal open season begin?

    At least 11 people have been killed in attacks on abortion clinics in the United States since 1993, including the Colorado attack. The most recent victims were Garrett Swasey, a police officer at the University of Colorado – Colorado Springs and a part-time church pastor; Ke’Arre M. Stewart, a former Army specialist who served in Iraq; and Jennifer Markovsky, a woman from Hawaii who was at the clinic with a friend.

    Authorities identified the gunman in the attack as Robert L. Dear Jr., saying that he opened fire with an assault-style rifle at the facility, setting off an hourslong standoff and gun battle that also wounded nine people. The police have not described the gunman’s motive, but authorities said that he spoke of “no more baby parts” in a rambling interview after his arrest.

    1. Stand your ground and return fire!

  10. The Texas law still allows abortion until a heart pulse is found which is about six weeks. Now one of the complaints about the Texas law is that it does not consider rape. But I say that is a fake claim. If a woman is raped I would think that she would want to know immediately if she is pregnant. At this time there is still available the morning after pill and it works to prevent a fertilized oven from implanting and thus becoming a fetus.
    In addition I would think that the woman would want the man caught and punished it it was a rape rather than changing her mind after the fact. So by reporting this rape the police could collect the evidence needed to charge and convict the man. That along with the description of the man who did the rape it should not be to hard to trace him down and arrest him.
    So no Texas law does not prevent abortion for rape it just limits the time which it can be done. But if the woman does not want to involve the police she can go to a doctor and get the morning after pill or even buy it over the counter at most pharmacies. So those who are opposing this law is incorrect but I must say that the abortion clinics are going to loose millions of dollars because of this law so their opposition to it is not because it prevents abortion but because it causes the abortion industry to loose big money in TEXAS from what they get from the abortion itself and from what they can get from the body parts that they can sell also.

    1. The first “loose” could have been a typing error. The second “loose” indicates a half-educated, gape-jawed, illiterate, rambling clinger.

      Carry on, clingers.

    2. ” Now one of the complaints about the Texas law is that it does not consider rape. But I say that is a fake claim.”

      So your claim is that the Texas “law” at issue DOES consider rape?
      Good luck with that.

      “If a woman is raped I would think that she would want to know immediately if she is pregnant.”

      And? where is the clairvoyance aspect of this law written in? Wanting to know something doesn’t magically allow someone to know.
      (Never mind the fact that the converse is more true. If a woman is raped, she’s going to want to know that she is NOT pregnant.)
      Morning-after pill is a limited solution, for the simple reason that they are not 100% effective in all cases, just like the regular pill isn’t 100% effective.

      ‘”I would think that the woman would want the man caught and punished it it was a rape rather than changing her mind after the fact. So by reporting this rape the police could collect the evidence needed to charge and convict the man.”
      Here’s part of the problem. You live in an imaginary world where police actually process rape kits rather than stockpiling them in warehouses.

      those who are opposing this law is incorrect”

      No, they isn’t. You is.

      “it causes the abortion industry to loose big money in TEXAS from what they get from the abortion itself and from what they can get from the body parts that they can sell also.”

      Maybe you could buy a brain?

  11. Concededly, I’m just looking from the shore, but it seems clear that a secessionist surfer has jumped ahead and taken the right to life surfer’s wave. Roe, especially given the procedural oddness of the original holding, was, as a doctrinal matter, much more vulnerable before the Alamo gang decided to bite their thumb at the federal courts.

    So. My ten. Top of the head, so maybe two will be worthwhile.

    1. Texas pregnant woman has a hotel-room session with a Texas doctor in New Mexico. It ends up in the New Mexico courts, pendant or otherwise, and parties stipulate Texas law. (Venue in SB8 is arguably procedural, not exclusive, and anyway permits filing in the place of the delict, not explicitly limited to the state) Equal Protection violation, since a New Mexico citizen isn’t similarly burdened?

    2. SLG preemption. Municipalities and state commissions can’t intrude on matters proscribed by state law, so the state is preventing government speech, cooperation among government agencies, and municipal public policy to the contrary.

    3. Free Speech simpliciter. The savings clause is in the civil enforcment provision, not the section that defines the offense, so you’ve still enacted a law that takes away speech rights. Say a police officer happens upon a man on a streetcorner with an ostrich feather in his fedora giving a woman $100 for the purposes of an abortion. Sufficient for a Terry stop on the reasonable suspicion of aiding and abetting prostitution? (The “state employee” bar on enforcement is limited to the homicide-related sections of the criminal code.)

    4. Texas aiding and abetting. A quick Google suggests it’s the Restatement test of substantial encouragement with scienter. Savings clause, again, is limited to the enforcement section. A conversation is therefore facially criminal if encouraging abortion and not criminal if not encouraging abortion. The legislature has “made a law” abridging the freedom of speech.

    5. Conflict of laws. Civil suit in Texas, New Mexico is the place of the delict and place with greatest interest. Plaintiff opposes deft’s motion for New Mexico law, asserting a public policy exception, as there had been an abortion contrary to the facial terms of the statute, but that had been well within viability standard. Unconstitutional deprivation of the property at issue in the suit?

    6. Aggravated offenses. Nothing in the statute limits its interrelation with other crimes or sentencing factors.

    7. THERE IS NO SECTION SEVEN.

    8. Unless theres a relevant definition of “person” elsewhere, as written the civil enforcement section would allow a Mexican citizen, foreign state, or North Korean internet startup company to file suit against anoyone who aids and abets an abortion within Texas’ reach. Due Process of law concerns in allowing American citizens to be haled into court at the whim of any person, natural or otherwise, in existence?

    9. In the course of purposefully availing itself of the facilities of the state to do business, an NGO substantially encourages many women to get abortions. Does jurisdiction comport with Due Process when there is a facial violation of the Constitution in the cause of action itself?

    10. New Mexico citizen creates an internet wiki that’s used to facilitate abortions. Reasonably forseeable that extraterritorial acts anywhere inthe country might incur civil liability in Texas, and a subsequent judgment that other states would then have to honor?

    11. What legitimate statute protecting the life of the unborn citizen of Texas might this picaune exercise in seccessionism have displaced?

    Mr. D.

    1. Texas pregnant woman has a hotel-room session with a Texas doctor in New Mexico. It ends up in the New Mexico courts, pendant or otherwise, and parties stipulate Texas law.

      Where do you see that the law purports to regulate abortions performed outside of Texas?

      the state is preventing government speech, cooperation among government agencies, and municipal public policy to the contrary.

      And?

      Say a police officer happens upon a man on a streetcorner with an ostrich feather in his fedora giving a woman $100 for the purposes of an abortion. Sufficient for a Terry stop on the reasonable suspicion of aiding and abetting prostitution? (The “state employee” bar on enforcement is limited to the homicide-related sections of the criminal code.)

      No, the statute expressly precludes any enforcement except through these civil lawsuits. Since the statute doesn’t create any additional criminal liability, I don’t see how it could be read to give the police any additional enforcement powers.

      Due Process of law concerns in allowing American citizens to be haled into court at the whim of any person, natural or otherwise, in existence?

      Sure, although those seem like they’d be adequately addressed by existing personal jurisdiction doctrines.

      1. α Texas pregnant woman has a hotel-room session with a Texas doctor in New Mexico. It ends up in the New Mexico courts, pendant or otherwise, and parties stipulate Texas law.

        β Where do you see that the law purports to regulate abortions performed outside of Texas?

        γ There’s no limitation on extraterritorial application in the statute. It simply say that X is forbidden and that it gives rise to a civil cause of action. Say that X is, instead, defined as driving without sufficient insurance. It’s been a while since I sloughed through Conflicts, but I don’t see why that wouldn’t be a counter-claim if Texas law governed in a foreign forum. Clearly substantive, not procedural. And, as noted, the statute’s venue provisions seem procedural and not exclusive.

        —————-

        α the state is preventing government speech, cooperation among government agencies, and municipal public policy to the contrary.

        β And?

        γ By preempting actions consistent with the generally recognized right (or even intergovernmental actions in a sphere within which Congress holds preemptive authority), the passage of the law gives sufficient standing — perhaps no need to wait around for someone to file a civil suit.

        ———————–

        α Say a police officer happens upon a man on a streetcorner with an ostrich feather in his fedora giving a woman $100 for the purposes of an abortion. Sufficient for a Terry stop on the reasonable suspicion of aiding and abetting prostitution? (The “state employee” bar on enforcement is limited to the homicide-related sections of the criminal code.)

        β No, the statute expressly precludes any enforcement except through these civil lawsuits. Since the statute doesn’t create any additional criminal liability, I don’t see how it could be read to give the police any additional enforcement powers.

        γ Incorrect. The provisions precluding enforcment (at least the ones relative to the police) are limited to very specific sections of the criminal code. (Homicide, etc.) The actions are illegal, regardless of whether the state has decided that enforcement is a wise use of their resources. Criminal activity gives rise to articulable grounds of reasonable suspicion. Something’s afoot. (Usually two things, actually.)

        ————————-

        α Due Process of law concerns in allowing American citizens to be haled into court at the whim of any person, natural or otherwise, in existence?

        β Sure, although those seem like they’d be adequately addressed by existing personal jurisdiction doctrines.

        γ The Due Process concern isn’t with the personal jurisdiction over the defendant, but at the creation of a cause of action that can apparently (from a quick look on my part) be vexatiously invoked without personal standing by any person, natural or otherwise, on the planet.

        Mr. D.

  12. This case really should be captioned United States v. United States.

    Nope. It should really be titled, “The Sovereign People of the United States v. Texas.”

    What Texas has done with S.B. 8 is attack the People’s sovereignty. The rights guaranteed in the Constitution—including those put there by inference in courts—are there because the People in their role as joint sovereign decreed them. The People’s intent in doing that was to arm the people in their individual, non-sovereign capacities with the borrowed power of the sovereign, giving even to lowly individual citizens a power sufficient to stay the hand of governments bent on infringements.

    With S.B. 8 Texas has become just such a would-be infringer government. It is entirely proper for the People’s national government jealously to defend the People’s sovereignty against that infringement. But it is important to understand that in doing that the government is not defending its own interest. It is defending the sovereign’s interest. A commitment to defend the sovereign’s interest is what the oath to defend the Constitution means, and it is the obligation which government officers take on when they swear the oath.

    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:

    That shows the problem with getting the case title wrong, and confusing all the categories in subsequent discussion. Once again, the injury is not to the federal government. The injury is to the sovereign People, whose government is obliged to defend their sovereignty.

    I am not sure if the term, “quasi-sovereign,” is borrowed from precedent, or why it would have been chosen in the previous case it may have come from. The interest defended in the S.B. 8 case is a straight-up sovereign interest, nothing, “quasi-” about it.

    1. SL,
      “It should really be titled…”
      Now that really is silly. Mr Garland knows what he is doing.

      1. Don Nico, I have little doubt that Attorney General Garland is a brilliant attorney, and more than competent to manage the case against Texas. Nevertheless, he would sew less confusion among the nation’s precedents if he took more care to distinguish sovereign interests from government interests. Of course, in that lapse Garland is merely repeating a near-universal and time-honored custom among lawyers, to conflate the national government with the national sovereignty.

        The practice to keep those scrupulously distinct seems to have died out not too long after the founding era. That was unfortunate. It has led to widespread and unnecessary confusion about how the American system of government was designed to work. As a result, quite a few gratuitous departures from that design have accumulated in the nation’s legal system, in its customs of governance, and among the perceptions of government held by its citizens. Most of those departures work less well—and are harder to understand—than the more clearly delineated system they inadvertently replaced.

        I try from time to time to encourage mindfulness of that older tradition, and the value that honoring it could still deliver to national understanding about how this People governs the nation. Occasions when that happens tend to be like this one, where framing issues using the older perception of the architecture of governance would also clarify the modern debate.

        Of course I get that doing as I do invites folks who have no idea what I am talking about—if they are also over-confident in their own views, and habitually reliant on what they see going on around them—to conclude I may be a crank. My aim is to try to sound level headed as I deliver my occasional reminders, and hope that creates room to help folks indulge their curiosity.

    2. “What Texas has done with S.B. 8 is attack the People’s sovereignty”

      No, what 5 members of SCOTUS did with Casey, and 7 did with Roe, was to attack the People’s sovereignty by substituting the members’ political desires for the Constitution.

      Because no one here is actually stupid enough to believe there’s an actual right to have an abortion written into the US Constitution.

      And none of the people who are demanding that other people take a vaccine can possibly claim to believe that the US Constitution grants us the right to control our own bodies.

      Does it ever bother you that your positions are such shit that you have to tell lies like that?

      1. Greg J, you are vociferous, but not polite, which is too bad. Generally, vociferous thinking is bad thinking. Yours does nothing to suggest otherwise.

        I have tried a few times previously, but now conclude you aren’t worth engaging substantively. Like so many of the right wingers who vociferate here, you won’t miss not hearing views which differ from your own, which is also too bad. All you want from dialogue is confirmation for your own opinions, plus endless reassurance of tribal membership in a notably stupid tribe. There is pathos there, but not the kind of pathos which serves persuasion—more the kind which attracts pity. I don’t have time for that. I won’t trouble you further, or see your comments either.

        1. You would be well served to look in a mirror sometime.

          1. What troubles you, Michael P? That I try to be polite? That I ask pointed questions for you to ignore? That I mostly avoid snark? That I come to a website where my opinions are not an easy fit, the better to get my opinions critiqued? That I mostly avoid subjects, such as legal technicalities, where I lack either experience or training to make constructive contributions? That I treat with respect even rude replies to my comments, and try to take them on substantively instead of lashing out (until a limit is crossed, as with Greg J above)?

            Say what it is about my commentary which you find objectionable.

            1. That I mostly avoid subjects, such as legal technicalities, where I lack either experience or training to make constructive contributions?

              Okay, that was pretty funny.

            2. You confuse sneering condescension, wrapped in prolixity, with politeness.

              1. Michael P, I am not confused. You are perhaps familiar with the adage that a gentleman never gives offense inadvertently. I am no gentleman, but I do what I can to match that standard. I doubt you will find any instance where I have used, “sneering condescension,” except after repeated gratuitous attacks on me by the target. When it comes to offense, I give back far less than I get.

        2. “Greg J, you are vociferous, but not polite, which is too bad. Generally, vociferous thinking is bad thinking. Yours does nothing to suggest otherwise.”

          His online persona is that of a highly belligerent stupid person, so noting that he is acting like a belligerent stupid person is not at all new information for him, other than confirming that you are getting the message he wants to send.

      2. “Because no one here is actually stupid enough to believe there’s an actual right to have an abortion written into the US Constitution.”

        At least one of us is actually stupid enough to know that not all of the rights guaranteed by the Constitution are, in fact, listed explicitly, nor that they explicitly do NOT need to be spelled out to be protected. Hint: take a quick look at Amendment #10.

        “Does it ever bother you that your positions are such shit that you have to tell lies like that?”

        Funny you should ask that. You never seem to ask it of yourself.

    3. “including those put there by inference in courts”
      *side eye*

      1. tkamenick, I don’t blame you. But it’s a separate argument.

  13. 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:

    Let us know when the Biden* Admin starts actually enforcing US immigration law

    Until then, any claim about them “Taking Care that the laws be faithfully executed” rings uttely hollow

    1. “Let us know when the Biden* Admin starts actually enforcing US immigration law”

      That happened when the Biden Admin took over running the federal government, or did all those Homeland Security staffers get furloughed, and nobody mentioned it? I’m pretty sure all those checkpoints at the border and all the airports are still staffed, even where the border is closed.

  14. Holy twisted misguidedness, Batman! They aren’t suing to keep would-be SB8-plaintiffs from doing anything. They’re suing to keep Texas courts from hearing or otherwise entertaining suits based on currently-unConstitutional state law. That’s something the state has power over, which is why Texas is a defendant.

    Maybe, in the endgame, the Supreme Court overturns Roe v. Wade. Until that happens, though, Roe is good law and state laws that purport to counter it are legally void ab initio. If you walk into court to sue somebody using a void cause of action, your suit should be dismissed outright. Ideally, that is already what Texas courts would be preparing to do, even without a federal injunction requiring this outcome.

    So much for “rule of law” and “respect the Constitution”, you wild-eyed radicals.

  15. The Rube Goldberg contraption begins to fall apart

  16. Can the United States sue quasi-sovereign capacity? I know states can, but I thought it was a derivitive of the states’ general police power (a power which the federal government doesn’t have). Is Garland trying to violate the Tenth Amendment?

  17. This DOJ suit names the State of Texas as Defendant, but per the statute, Texas is prohibited from enforcing SB 8. If Texas is not a proper defendant in the case, doesn’t Hollingsworth v. Perry, 570 US 693 (2013) require dismissal for want of standing?

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