The United States sues Texas Over S.B. 8

"The State of Texas includes all of its officers, employees, and agents, including private parties who would bring suit under S.B. 8."

|

As promised, the United States filed a lawsuit against Texas. To be precise:

Defendant, the State of Texas, is a State of the United States. The State of Texas includes all of its officers, employees, and agents, including private parties who would bring suit under S.B. 8.

And the prayer for relief states:

WHEREFORE, the United States respectfully requests the following relief:

a. A declaratory judgment stating that S.B. 8 is invalid, null, and void;

b. A preliminary and permanent injunction against the State of Texas—including all of its officers, employees, and agents, including private parties who would bring suit under S.B. 8—prohibiting any and all enforcement of S.B. 8;

This suit resembles another suit in which the United States and Texas were parties. In 2018, Texas sued the United States over the ACA. The state argued that the federal government enforced an unconstitutional mandate. The Supreme Court held that the federal government did not actually enforce the mandate; thus, there was no way to redress the alleged injuries.

Now, the United States has sued Texas over a law it does not enforce; and, once again, there is no way to redress the alleged injuries. Indeed, when I read California v. Texas, last June, I thought to my self, "huh, this will make it much harder to challenge S.B. 8." And so it will.

I will have more to say about the complaint in another post.

NEXT: The Institute for Free Speech’s First Amendment Fellowship

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. I live in Texas. Am I a defendant here?

    The DOJ is piling undefinable on top of the work out ledge did you create undefinable.

    1. Conceptually, I’m not sure this is all that different from, say, a quiet title action in which you’re suing the entire world. Procedurally, you serve “the entire world” by publication.

      1. “Procedurally, you serve “the entire world” by publication.”

        No you don’t.

        Quiet title actions are against named defendants like any other and service is made in the ordinary matters.

        “unknown heirs” might be defendants and could be served by publication if necessary.

        1. Somehow, a lawyer always finds a way to drag the Rule against Perpetuities into something that seems unrelated. Just dropping the RaP seems like an obvious solution, but the “I had to learn it when I was in Prop law in the first year of law school, so you do, too” logic is unassailable.

    2. Apparently you are. They’ve just sued, not just the state government, but the entire state population, too.

    3. Bevis, you are not a defendant.

      1. bevis, you ARE the father! — Maury Povich

    4. The defendant is Texas. If I understand the DOJ’s position correctly, that includes officers, employees, and agents of the state and, to the extent a private party would try to enforce this law by bringing suit, they’d be acting as an agent of the state. Is the DOJ right in that they’d be acting as an agent of the state? I’m not sure.

      That said, yes, the pool of people who are potential would-be enforcers of the law is, in theory, vast. But so is the pool of people who are potential future officers or employees of a given state. Could the DOJ get an injunction against a state to prevent it from enforcing – through more traditional state actor means – an unconstitutional law even though those effectively enjoined included as-yet unknown future officers and employees of the state? Really, every potential future officer and employee to the extent they are would-be enforcers of the law?

  2. At a certain point Democrats just have to give up and let Republicans own this issue. This is very similar to Afghanistan where the Taliban are true believers who really believe in their cause and so at some point you just have to stop fighting and see what happens—the Taliban now own Afghanistan and have to come up with billions of dollars just to keep the lights on AND they have to deal with ISIS-K that targets newborns and women in hospitals. Republicans in Texas will soon have to deal with suburban moms once their abortion regulations are implemented.

    1. I assumed someone would be along shortly to make some weird Taliban comment. Of course that is completely deranged and a rational person wouldn’t make that comment at all.

      1. Trump made the Taliban our ally and then strengthened them…ISIS-K is our enemy.

    2. To compare anything happening anywhere in the United States to the Taliban is obscene. You fucking diminish the suffering of real Taliban victims.

      Shane on you.

      1. Trump made the Taliban our ally. What other groups that do awful things can’t I mention?? Drug gangs in Central America?? Communists in Cuba? Haitian thugs??

        1. I dunno. You could try dropping the hyperbolic garbage analogies.

          I live in Texas. Regardless of your opinion about this law, if you truly think anything that’s happening here is 2% of what the Taliban is doing your perspective is so destroyed by politics that you need to step away.

          Same with “OMG it’s Jim Crow on steroids!!!” Or “It’s like the Holocaust!!!” This ain’t that chief.

          1. I was arguing Trump did the right thing by surrendering to the Taliban. And the Taliban is obviously much worse than Texas Republicans (but the Taliban are better than Bush/Cheney Republicans 😉 ). Sometimes you just have to surrender a fight and move on with your life…especially when the other side is made up of true believers and they are winning.

          2. True, it seems that perhaps the Taliban can learn, which makes them very unlike Texas Republicans.

            I wouldn’t want either one to make decisions that affected any woman I cared anything about.

        2. The Taliban did something the US AA and Govt could not do..law and order and low levels of corruption. Yes it was harsh but the corruption stopped, the rape of young boys isn’t allowed and so on. The US has to stop our cultural imperialism telling other countries how to live. Pushing woke gender studies apparently is not something a traditional society values. The Taliban is not a regime we would like to live under but most people there like them better than the alternative.

      2. Hmm, have there been more abortions in the US in the last 20 years or more people killed by the Taliban?

    3. Are suburban moms getting abortions?

      1. We shall see what happens when Republicans get their way on abortion.

        1. “We shall see what happens when Republicans get their way on abortion.”

          They’ll move on to start re-criminalizing sex.

    4. “This is very similar to…the Taliban”

      So. Original.

      1. My point is Democrats should surrender to Republicans in Texas just like Trump surrendered to the Taliban…Biden shouldn’t fight it just like he chose to not fight the Taliban after Trump intentionally strengthened them.

        1. Theme and variations – the theme is old and cliched.

          1. The theme is stop fighting true believers when they have pretty much won after decades of fighting?? TRAP laws mean abortion is currently banned over large swaths of America.

            On the back end pretty much every downside of unplanned pregnancy outside of marriage is no longer a big deal. I have multiple friends with children from 2 partners and multiple friends that have responsibility for step children and other friends that are divorced from the other parent of their children. And in 2021 when is a good time for a menstruating person to have a child? Obama was born to a teenager mother and she got her PhD, and Obama turned out fine with no father around. Kamala’s sister had a baby as a teenager and her sister still graduated from Stanford Law and her daughter with no father around is even more accomplished than Kamala or her sister. Plus autism rates are going up because older parents are more likely to have a baby with autism—so younger eggs are better than older eggs.

            1. Its a State issue not a Federal one..or get a constitutional amendment passed. And are you suggesting we should have stayed in Afganistian?

              1. I support withdrawal…I think the Global War on Terror is one of the dumbest periods in American history. Trump making a deal with the Taliban was the best option of many bad options…but it makes sense in light of the fact the Taliban are the entity that is most capable of killing terrorists in remote regions of Afghanistan AND they understand we will hold them accountable if terrorists attack America from territory they control. America is really good at killing foreign bad actors…but really bad at nation building.

              2. “are you suggesting we should have stayed in Afganistian?”

                We should have back when W and Cheney’s brain trust decided to take our eye off the ball, and open a new front in Iraq. Everything we did in Afhanistan after that was basically a waste.

  3. This is a political stunt meant to show the pro-abortion activists in the democrat party that Biden is “doing something”.

  4. As good a vehicle to get rid of Casey as any other.

    1. As good a vehicle to precipitate enlargement of the Supreme Court — and admission of two or three states, enlargement of the House (with it, Electoral College), elimination of the filibuster, etc. – as any.

      You have lost, clingers. You can’t win. At most, you can persuade the victors to exhibit some magnanimity. So be nicer, or your betters may stop being so nice.

      1. “your betters” — look up inferiority complex. Some therapy might help there.

        1. People who are not bigots are better people. People who are not half-educated are better people. People who prefer reason to superstition are better people.

          Disagree? Keep voting Republican and watch the liberal-libertarian mainstream shape our national progress against your wishes.

          1. Big Art..there is no liberal-libertarian mainstream. The Von Mises caucus is taking over Nick and Joey “the hench” bishop henchman..ha ha ha

            1. ” The Von Mises caucus is taking over Nick and Joey “the hench” bishop henchman..ha ha ha ”

              Could one of the other clingers translate to standard English? Thank you.

        2. kRAKen is confused because everyone is its better.

  5. Game set and match…

    “. “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.” Id.at 20.

    1. Hardly. That case just establishes that a state court enforcing a racial restrictive covenant would be state action, and thus deny the plaintiffs the equal protection of the laws. It didn’t hold that the federal government could sue the state judges themselves to prevent them from ruling in a case — indeed, Shelley was a lawsuit between private parties. No one really denies that, if someone filed a suit under the Texas law, the defendant could raise the constitutional issue as a defense.

      1. “That case just establishes that a state court enforcing a racial restrictive covenant would be state action, and thus deny the plaintiffs the equal protection of the laws.”

        Literally the argument of the US.

        “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.”

        There isn’t a legitimate argument that Texas isn’t engaged in state action, and there isn’t a legitimate argument that Texas isn’t violating multiple aspects of the Constitution here.

        1. I feel like you are missing the point. Whether it would constitute state action for a state court to enforce the statute in a lawsuit brought by a private citizen is not really disputed, so saying that it would constitute state action doesn’t answer the question. There is Supreme Court precedent that you can’t sue state court judges, and you can’t just get around that by calling them “The State.” And it seems preposterous to say that you can just define “The State” to include unnamed people who do not work for the state or exercise any state authority, but may possibly one day file a lawsuit asking a court to enter a judgment against an unknown defendant.

          1. S.B. 8 made all that not-preposterous.

          2. And it seems preposterous to say that you can just define “The State” to include unnamed people who do not work for the state or exercise any state authority, but may possibly one day file a lawsuit asking a court to enter a judgment against an unknown defendant.

            If I get an injunction against the state enforcing, I dunno, a ban on firearm ownership, does that not run against “unnamed people who do not work for the state or exercise any state authority, but may possibly one day” do so? An injunction against an entity is inherently an injunction against its agents and those working in concert with it, now or in the future.

  6. So all those Texas state judges who will award $10K to bounty hunters don’t work for… Texas?

  7. So how often does the DOJ sue a state over a law that has not yet even been enforced (if you can call it that), and has been enjoined by a state court? Is this the first time this has happened? Maybe the law professors here can tell us.

    I worry though that a very unwise precedent is being established at a particularly bad time.

    1. Abortion uber alles.

      Libs don’t think the leopard will eat their face later.

      1. It will end very, very badly. For everyone, I fear.

        1. If it just kills one baby…

          1. Or would, if babies were involved.

  8. In any other context, this would be clearly outside of federal courts’ jurisdiction. You can’t get an dec or an injunction against anybody who would do something, for good reason.

    But I’m not sure how getting a preliminary injunction would work. Given that the Texas law is clearly unconstitutional, it seems like the balance of equities favors the feds. But can you get a preliminary injunction if courts wouldn’t have jurisdiction to issue the permanent injunction?

    1. Given that the Texas law is clearly unconstitutional, it seems like the balance of equities favors the feds.

      Is it and does it ? I can’t say I’ve read it myself but I had got the general impression that it allows private parties to bring nasty lawsuits against people involved in some way with abortions of post 6 week gestation humans.

      Under current precedent abortion is a constitutional right in the first trimester, but less emphatically so thereafter. So an application of the Texas law in a 7 week gestation case would be unconstitutional under current precedent. But not so much in a 22 week gestation case.

      So I should have thought the law is unconstitutional in some potential cases , but not in others.

      1. It is intended to drive abortion providers out of Texas, and appears to be succeeding in doing this. As in 1A cases, and attempt to “chill” execution of things which are legal is not cool.

        What to do about it? Well, if a lawsuit is filed, and the case gets docketed, a section 1983 lawsuit might be interesting, although I supposed they’d have to target the clerk of the court rather than the judge because of judicial immunity.

    2. Think of it as a mandamus action against the Texas courts.

  9. I think the more appropriate avenue to challenge the law is for an actual case to arise between a plaintiff and defendant. At that point, the case can work its way through the courts and, presumably, end up at the Supreme Court. The person challenging S.B. 8 can then rely on Shelley v. Kraemer (1947) and similar cases as precedent, arguing that the the actions of state courts and judicial officers are actions of states under the 14th Amendment.

    Shelley involved private agreements, between consenting individuals, to exclude persons of certain races from the use of real estate. Yet, despite Josh’s constant claims to the contrary, the Court’s ruling in that case prevented individuals other than Shelley and Kraemer from having similar agreements enforced by state courts. For example, in Woytus v. Winkler (1948) The Missouri Supreme Court, citing Shelley refused to recognize a racial covenant between individuals who were not parties to the case in Shelley. In Tovey v. Levy (1948) the Illinois Supreme Court, deciding a case involving a racial covenant, wrote, “Whether or not the said fourteenth amendment was violated by State action raises a Federal question and where the Supreme Court of the United States has passed directly upon the question we are bound by its decision.” The interpretation of the federal constitution is what binds lower courts, as opposed to an injunction.

    In other words, if the challenger in a single case in the Supreme Court were to succeed in arguing that a Texas state court’s enforcement of S.B. 8 is state action that violated the 14th Amendment, that constitutional interpretation would bind Texas judges in future cases (even without them being named). The process worked itself out in the 1940s without a nation-wide injunction, and it can do so again today.

    Josh is, of course, free to argue that Shelley v. Kraemer should have only been binding on the litigants to the case, and other persons should have been able to have their racial covenants enforced by the courts.

    1. Getting it to the Supreme Court might be a challenge. You can’t remove a state court case to federal court based on raising federal law as a defense, and while SCOTUS can take cert from a decision from the highest court in a state, it’s possible the Texas highest court chooses not to take a case to avoid that.

      1. When you point out that the case is moot because there’s no cause of action, since the state law cited is void ab initio, what is the state court supposed to do with it?

        1. They will tell you that you are wrong and decide and order accordingly… is this a serious question?

          1. Only for people stupid enough to be in Texas.

    2. In other words, if the challenger in a single case in the Supreme Court were to succeed in arguing that a Texas state court’s enforcement of S.B. 8 is state action that violated the 14th Amendment, that constitutional interpretation would bind Texas judges in future cases (even without them being named). The process worked itself out in the 1940s without a nation-wide injunction, and it can do so again today.

      The problem with that as a practical matter is that in Shelley the “process worked itself out” because there was no interim harm. But if I’m an abortion provider right now in Texas, if I do an abortion for a 10-week pregnant woman I can be sued for $10,000+ (the law actually says $10,000 minimum; it has no cap) at any time in the next four years. If that happens, a $10,000 judgment will be entered against me. Now. I can then appeal up the ladder, and then up to several years later (it took three years in Shelley) maybe SCOTUS strikes that down. In the meantime, I’d be bankrupt because that would happen to me with almost every abortion I provide.

      So… I’m not going to perform the abortion in the first place. (Now, maybe someone’s willing to do it as a test case — but that doesn’t do anything for me; the non-test-cases aren’t going to happen.)

      Again, in Shelley, the only risk to the Shelleys was that 3 years later they might be forced to sell their home and move. (Not that that’s fun, but it’s not irreversible.) Here the abortions aren’t being performed, kids are being born, and abortion providers are shutting down.

      (Now, obviously if one thinks abortion is a great evil that’s a feature rather than a bug, but the premise here was that abortion was a protected right, and what’s the big deal about waiting to challenge the law?)

      1. If you prevent enough abortions, you will have prevented one abortion that ultimately leads to a pregnancy that ends with mother and child dying in childbirth.
        Yay for the win.

  10. I am 100% certain that Merrick Garland’s DoJ has nothing but incompetent lawyers in it that have no idea what they are doing, aren’t you?

    1. They may be competent lawyers, but they certainly are sailing in uncharted waters. Expect this one to get bogged down in all kinds of Article III issues, like ripeness, standing and mootness. Which lawyers enjoy, but the public finds as interesting as watching paint dry.

      1. ” but the public finds as interesting as watching paint dry ”

        I disagree. The “mission from God” anti-abortion kooks will find every procedural turn and semantic wrinkle as fascinating as a swinging, shiny watch or a fairy tale.

    2. “I am 100% certain that Merrick Garland’s DoJ has nothing but incompetent lawyers in it that have no idea what they are doing”

      Did the new AG get stuck with holdovers from the prior administration?

  11. As far as I know, the Texas statute does not limit potential plaintiffs to Texas residents, so we are all apparently Texans now, according to DOJ.

    1. Indeed you are, if you were planning to take part in the Texas bounty program on people who help women get abortions.

  12. I’m enjoying watching all the resources of the federal government rush to Texas to defend the “right” to murder an innocent child when we couldn’t even figure out a way to evacuate Americans from Afghanistan, despite having literally all the time in the world to figure it out, in an orderly manner.

    The hypocrisy is not lost on me, nor is it lost on the average Joe down the street from me.

    1. Nonsense. We only had 20 years and nearly infinite logistical resources in Afghanistan.

      Here in the USA we have motivated primary voters and donors.

      1. I don’t think the average Dem realizes how much damage was done to Biden especially over the suitcases of American currency that were packed into the helicopter of the fleeing ex-president. Johnny Taxpayer does not like the fact that a good chunk of his paycheck went to that effort.

        How many middle class taxpayers does it take to fill the helicopter of a fleeing foreign leader with 100 dollar bills so much a bunch has to be left on the tarmac?

        1. It was Republicans who flushed so much — lives, national standing, morality, cash –down the drain in the Middle East, clinger. Democrats played a supporting role, and Republicans tend to be too stupid to understand, each of which mutes the prospects for accountability with respect to conservative failure in Iraq, Saudi Arabia, Israel, Afghanistan, etc.

        2. “I don’t think the average Dem realizes how much damage was done to Biden especially over the suitcases of American currency that were packed into the helicopter of the fleeing ex-president.”

          How much did Trump make off with?

    2. “I’m enjoying watching all the resources of the federal government rush to Texas to defend the “right” to murder an innocent child when we couldn’t even figure out a way to evacuate Americans from Afghanistan, despite having literally all the time in the world to figure it out, in an orderly manner.”

      The people who wanted to get out o Afghanistan should possibly have made travel plans before the last minute. They chose to stay past the deadline the previous administration had set for withdrawal. The Afghan nationals who wanted out had a good reason for staying, in the sense of not having anywhere to go, but Americans with American passports could have returned to the US any time they wanted.

      1. The Afghan government would resist the Taliban for at least 90 days after the US military finished evacuating. All the experts said so. Are you saying that people should have ignored the advice of US government experts?

        1. We’re talking about people who were (and in some cases, are) in Afghanistan, observing events in Afghanistan. Should they believe what they can see, or the “experts” back home in the States?
          All the people now subject to Texas anti-abortion law (the ones who don’t want to be subject to Texas anti-abortion law, I mean. Obviously, the ones who wouldn’t have gotten an abortion anyway probably aren’t affected until the next round.) They knew this was coming and definitely should not have been expecting the Supreme Catholics to help them out. If my daughter had been living in Texas I would have suggested that perhaps NOT living in Texas would be the way to fix that problem.

          For that matter. I am currently in Georgia for work, and the politics here are so broken I will be somewhere else the next time it’s time to vote.

  13. The closest thing I can think of like this is a defendant class action. That is rare but not impossible. But there are lots of hurdles to get over to make that work. The U.S. did not go down that route.

    The complaint only names Texas as a defendant. So I have a hard time seeing how private parties can be subject to the injunction the U.S. seeks. Rule 65(d) provides:

    (2) Persons Bound. The order binds only the following who receive actual notice of it by personal service or otherwise:
    (A) the parties;
    (B) the parties’ officers, agents, servants, employees, and attorneys; and
    (C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B).

    Hard for me to see how a private party fits into any of those.

    1. True, though it will be equally effective if private parties are free to file suits but the courts are enjoined from hearing them.

    2. Hard for me to see how a private party fits into any of those.

      Why is it hard to see how a private attorney general is an agent of the state?

      1. “Why is it hard to see how a private attorney general is an agent of the state?”

        Well, there’s that word “private” and its commonly-accepted meaning.

    3. Their theory is that a “state” as a legal, suable entity includes everybody who lives in the state. Novel.

    4. “The closest thing I can think of like this is a defendant class action.”

      It’s a mandamus action against the Texas courts.

  14. I have to say, defining “Texas” to include everyone in the state (and potentially the world) makes service of process a lot easier. I should start doing that in all my complaints.

    1. They’re trying to remind Texas courts that they are still subject to U.S law.

  15. Why not take the suit and decide it on the merits?

    BUT –

    Precisely because a merits decision would have to face up to whether Roe is correct or not, the Supremes will cook up a reason to avoid the merits.

  16. Why not take the suit and decide it on the merits?

    BUT –

    Precisely because a merits decision would have to face up to whether Roe is correct or not, the Supremes will cook up a reason to avoid the merits.

    1. Wait, U. S. district court, not Supreme Court. Forget that noise.

      1. “Forget that noise.”

        All the ones with your name on ’em? You got it!

  17. I’m not convinced that this is the right time for DOJ to file its suit.

    The term “viability” has certainly changed over thirty years, just as the term “quickening” has changed over 280 years. The abortion exception to manslaughter statues has since the founding of the nation applied before a child has quickened: that is well-settled law. But when does a child quicken? Science provides the answer and the Courts are neither physicians nor scientists … unless I’ve missed something in the parallel “your body, my right” vaccination discussion.

    Roe, Buck, and Jacobson are all rightly on the chopping block.

    1. I’m not convinced that this is the right time for DOJ to file its suit.

      How would you know what the ‘right time’ to file is?

    2. ” The abortion exception to manslaughter statues has since the founding of the nation applied before a child has quickened: that is well-settled law. But when does a child quicken? ”

      As you say, well-settled law. And NOT what current abortion law is based on.

      1. Play the hypothetical game.
        Imagine that a device/procedure is developed which allows the mother to extricate herself from the fetus perfectly. In step 1, she’s wrapped around a fetus, then poof! in step 2 she’s in a different room, leaving the fetus behind. In step 3, she goes home. Now, what is the status of the fetus? Is it a live person? That’s where the question of “viability” comes in. If the fetus is viable, that means that it is possible to keep it alive. IF the fetus is not viable, then it is dead or soon to be dead. Now, the tricky question. Was the fetus murdered? If so, by whom?

        1. Does this question hinge on the state of medical technology? If so, how widespread does the technology to keep the fetus/child alive have to be: Available at reasonable cost? At the facility in question? At a nearby hospital? Somewhere in the country?

          1. It has to exist.
            We’ll leave to another hypothetical what happens when the technology to transplant a functional placenta into another host human. Hint: It isn’t more than a handful of pro-life activists rushing to sign up to volunteer, to save all those babies.

  18. Hypothetical (maybe this raises totally different issues that the Texas law, I don’t know, but I’m curious):

    Imagine that Republicans maintained control of the House in the 2018 elections, so the White House and Congress remained under Republican control through January 2, 2021. Also imagine that the last thing the Republican Congress does is pass a national “heartbeat law” along the lines of Texas’s. Trump signs the law on the morning of Biden’s inauguration.

    Biden is inaugurated and his Justice Department wants to stop the new law. Can they sue “anyone in the United States who might enforce this law”? Is it United States v. United States?

    I honestly don’t mean that as a joke. Is this a thing? What’s the scope of who the United States can sue to stop a private enforcement regime?

    I read the DOJ complaint in the Texas case and it seems like they’re pushing hard on casting the state judiciary as the proper subject of an injunction. But if this were scaled up nationally, it seems like that would be a problem. What judge could hear the lawsuit?

    1. BTW, I know that the current Congress would just repeal the law. But imagine it couldn’t (as in, one of the two Georgia GOP senators won their run-off). Or maybe think about it more abstractly. What if a GOP administration concludes that environmental citizen suits are a threat to the private property rights protected by the constitution. Could a GOP DOJ sue the nation to try and enjoin citizen suits?

      1. This isn’t the Biden DOJ deciding that abortions are legal, this is the Biden DOJ noticing that current existing law says that abortions are legal.
        Once you have a Supreme Court ruling to hang an abortion ban on, then go ahead and enact a ban. Until then, comparing to citizen environmental-law lawsuits is bad analogy.

    2. “What’s the scope of who the United States can sue to stop a private enforcement regime?”

      The United States can sue anyone subject to US jurisdiction, and some that are not (if they have assets that are.)

  19. That Merrick Garland will lose several times before a court that he will never be on tickles me to no end.

    1. Imagine what it would be like to actually win a culture war, DWB, rather than spend your lifetime getting stomped into irrelevance by better Americans.

    2. You’re assuming that he never gets another chance to join. Why don’t you pop down to the local convenience store, and buy several thousand lottery tickets, so that someone who is not you can win that money. Powerball isn’t quite high enough yet.

  20. The Supreme Court held that the federal government did not actually enforce the mandate; thus, there was no way to redress the alleged injuries.

    Yeah, that’s not even remotely a fair description of what the Court held. They held that there weren’t any injuries because there was no enforcement mechanism existing in the law. It was not that the federal government “did not” enforce the mandate; it’s that there was nothing to enforce. The only penalty for violating it was a $0 fine. Which is definitionally not an injury.

  21. “Now, the United States has sued Texas over a law it does not enforce”

    So, if someone files a lawsuit alleging that defendant X participated in an abortion involving a fetus more than 6 weeks old, it wouldn’t be heard in a Texas court? And if (this is my hypothetical, so I’ll make it easy) the defendant doesn’t bother defending itself against the suit since it’s legal in the United States to perform pre-viability abortions) When happens when the plaintiff tries to use a default judgment to seize property?

Please to post comments