WSJ: DOJ Will Sue Texas, As Soon As Thursday

It still isn't clear who DOJ would sue. Even if sovereign immunity is waived, there is no statewide injunction available.

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On September 2, President Biden threatened to sue Texas over S.B. 8. Attorney General Garland issued a statement about possible prosecutions under the FACE Act. However, it is unclear how that statute would even be relevant, since clinics are not performing abortions now. Laurence Tribe wrote that DOJ should prosecute Texans under the KKK Act. But after Tribe's advice on the eviction moratorium case crashed and burned, I suspect his cachet in the White House has diminished.

On Wednesday, the Wall Street Journal reported that DOJ may file a lawsuit as soon as Thursday. Details are scant:

The Justice Department is expected to pursue an argument that the Texas law illegally interferes with federal interests, one of the people said. The precise nature of those arguments couldn't immediately be learned.

If the United States files suit against Texas, or Texas state officials, the defense of sovereign immunity is no longer available. But that is only one hurdle. It still isn't clear who the United States would sue. I don't think a suit against Texas, as a whole, would even work. State governments are not unitary entities. Indeed, the federal government routinely rails against non-party (nationwide) injunctions. There is no equivalent statewide injunction against everyone in the state.

Moreover, the suits against state court judges is problematic for a reason that hasn't gotten much attention. State court judges must decline to opine on the constitutionality of the law. Were judges to defend the law, they would be forced to recuse. Given that they cannot defend the law, judges lack the requisite adversity for Article III standing. In other words, litigation against state judges is a sham. There are so, so many reasons why suing state judges cannot work. I still have yet to seen anyone explain how the Supreme Court could have "blocked" the Texas law given only a single judge was present, and he declined to defend the law.

The WSJ also mentions other actions the federal government could take. First, DOJ could strip federal funding from Texas. Soon, we would have a redux of the sanctuary city litigation: can the federal government impose new conditions on federal funding? Everyone, prepare to switch sides.

Second, the federal government is "trying to determine whether there are federal facilities within the state that could provide abortions." I suppose abortions could be performed on military bases and other federal buildings. Perhaps room is available at 515 Rusk Street. This arrangement would resemble McCulloch v. Maryland. The states cannot criminalize the federal program. Again, this position has shades of the sanctuary city litigation, wherein California tried to impose specific restrictions on federal detention facilities.

Ilya Shapiro and I wrote about both issues in the WSJ:

The second sanctuary policy is harder to justify. It instructs California's attorney general to inspect and review detention facilities, both public and private, "in which noncitizens are being housed or detained." Obviously there's no problem if California wants to inspect its own facilities, but the state exceeds its authority when it targets facilities run by the federal government or its contractors. States have the power to review federal facilities generally—for example, county health inspectors can check out the cafeteria in a federal courthouse. But they cannot burden a specific exercise of federal power with additional constraints.

Targeting federal agents for heightened scrutiny violates the so-called intergovernmental immunity doctrine. Two centuries ago, Maryland sought to impose a tax on a branch of the Second Bank of the United States. In the landmark case of McCulloch v. Maryland (1819), the Supreme Court held that Maryland had overstepped its authority. "The power to tax involves the power to destroy," Chief Justice John Marshall wrote, and the state lacks the "power to control the constitutional measures" of the federal government, which the Constitution "declared to be supreme."

Through his state's novel regime, California Attorney General Xavier Becerra isn't merely inspecting federal facilities in a neutral and consistent fashion, but, according to the federal government's complaint, has "demanded access to various private documents respecting the 'welfare of persons detained' " by the feds. To the extent that California is imposing additional burdens on federal immigration facilities—and no other federal properties—this second sanctuary law is unconstitutional.

Of course the Supreme Court denied cert in the California litigation on Blue Monday. Clarity of law is not something the old Roberts Court cared much about.

Stay tuned.

NEXT: SCOTUS Moves Capital Case From Shadow Docket to Rocket Docket

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  1. Hopefully they’ll put as much effort into it as they are in rescuing Americans from Afghanistan.

    1. This is an odd drum to bang on, considering the Air Force managed to rescue about 20,000 Americans in pretty short order.

      1. Not to mention something like 100,000 Afghans.

        1. One big government suinganother big government, one stupider than the other.

          Texas will birth a lot more Democrats, thugs, and career criminals. It will unleash street litigation, which will be abused against conservative causes. Democrats love lawfare.

          The federal government will be asking the Supreme Court to reverse itself. It does 1% of the time.

          How about this lawyer dumbasses? Draft a reasonable federal law on abortion with bipartisan support. That should have been done in 1973. Do a little work for a change. Do your jobs, lawyer dumbasses.

        2. Wow, we got out 100k Afghans!

          how wonderful!

          Gee, I wonder …

          How many of the people we “got out” were members of / supporters of the Taliban?

          How many anti-American terrorists did we “get out”?

          How were those “100k Afghans” vetted?

          They weren’t? They were just sort of randomly allowed on the planes, and into the US?

          That’s an interesting definition of “success”, but you do you

      2. The Air Force isn’t planning to coordinate a suit against Texas over the abortion law.

        1. So you are dinging the DoJ for Afghanistan?!

      3. Out of how many?

        1. You know that number is unanswerable, so stop asking bad faith questions.

          We got damn near everyone out. And yet Amos is pretending we didn’t do anything. And you’re helping.

          1. It’s bad faith to ask how many Americans we left stranded in Afghanistan? You guys are really desperate.

            And the fact that we screwed up and had to rescue a whole bunch in short order doesn’t mitigate the blame for the ones we failed to evacuate.

            1. Gaslighto is the king of bad faith.

              Biden promised no Americans would be left behind. Zero.

              But its “bad faith” to ask about it.

            2. It’s bad faith to ask that question in service of supporting the proposition that not a lot of effort was spent Americans from Afghanistan.

              Not saying it wasn’t a screw up, but it’s wildly inaccurate to pretend no effort was made.

              1. Bzzt

                We’re not saying “no effort” was made

                We’re saying the people doing it were and are incompetent f*ckups, that whatever “effort” they put in was mostly spent stupidly, and what was done “well” (we flew out a bunch of people!) was made harder (we should have kept Bagram. Lacking that, we should have kept control of Kabul until we were out) and / or less valuable (we got out a bunch of unvetted people, some of whom will cause harm to Americans solely because we brought them here) because of the utter incompetence of the Biden* team.

                None of which you address, since even you know it’s true

                So you beat up straw men instead

                1. We’re not saying “no effort” was made

                  Amos: Hopefully they’ll put as much effort into it as they are in rescuing Americans from Afghanistan.

                  Technically didn’t use the magic words ‘no effort,’ but absolutely means no effort.

                  1. Maybe Amos hopes they’ll drop the lawsuit after 16 days.

                  2. Um, no

                    Me: We’re not saying “no effort” was made
                    You: Amos: Hopefully they’ll put as much effort into it as they are in rescuing Americans from Afghanistan.

                    Me: Past tense. Yes, they put in some effort, in the past
                    Amos; Present tense: they are putting essentially no positive effort (there’s some question as to whether or not they’re putting in negative effort, blocking Americans from escaping) into helping Americans get out of Afghanistan.

                    Do you claim the Biden* Admin, which pulled out a day early while leaving thousands of Americans behind, is currently putting in any significant effort to get those Americans out?

                    If not, you’re agreeing with Amos

                    If so, you’ll need to provide some support for that claim

                2. These are all unprovable counterfactuals. There were only bad options, and I think the Administration did a good job in the face of an unforeseeably quick collapse of the Afghan government/military

                  1. Unforeseeably? It’s their job to foresee that stuff.

                  2. Keeping Bagram until we had al lour people out was not a “bad option”

                    Continuing to allow foreign mercenaries to provide maintenance to the Afghan Air Force was not a “bad option”

                    Giving the Taliban the personal and biometric data of all our Afghan allies was not a good option, or good judgment. A good option would have been to put US teams on the outer perimeter, and have them vet who could come in, at clearly marked entrance points.

                    That’s just off the top of my head, for some of the more egregious Biden* Admin screwups.

                    But if those screwups couldn’t even see that what they were doing was going to lead to the immediate collapse of the Afghan gov’t and Army, they’re too stupid and incompetent to be trusted with power.

                    And anyone who voted to put those screwups in power is also a major league screwup

          2. “Damn near everyone” … sourced from the same source that told you they had accounted for every contingency?

            But suddenly they’re now believable and an unimpeachable source for you? Lefties are so transparent in their media prejudice.

            I’m sure the desperate people sitting on the planes at the Kabul airport waiting to leave, will be comforted by your confidence in the Biden Administration and their Cluster “Flop” approach to foreign affairs. As the SoS publicly worries about there not being any women or trans people on the ruling councils.

            1. The only way the scramble in Afghanistan could have been avoided is if the Biden (and Trump) Administrations totally ignored the Afghan government and dealt directly with the Taliban to hand the country over to them.

              As it was, Biden got the Taliban to hold back for almost three months. Trump had agreed to be out by May 31, remember?

              1. I think we could have spun up State to fast-track refugee status for those who helped us.

                And that’s a damn shame. But after that first day, a fiasco it was not.

              2. Wrong

                If the Biden* Admin hadn’t abandoned Bagram, we would have had a secure place from which to hand departures

                If the Biden* Admin hadn’t screwed over the Afghan Air Force, while sneaking out of Bagram in the middle of the night, the Afghan Army might have though they weren’t being abandoned, and so actually put some effort into resisting the Taliban

                The Biden* Admin didn’t “get the Taliban to hold back for almost three months”, they simple said “we’re unilaterally changing the deal”.

                Which meant no one else was bound by it, either.

                It also meant that Americans and American green card holders had a chance to fly to Afghanistan for the summer, so that they could be abandoned there.

                Keep digging, the hole is only a couple miles of deep so far

                1. Trump was the one who abandoned the Afghan government. It couldn’t survive without massive American military presence and everyone knew it.

                  1. Trump was the one who abandoned the Afghan government.

                    Oh, now that’s just creative. Biden didn’t even try to maintain “TRUUUUMP made me withdraw seven months after he left office, wah!” after the first day or two. Silly him for not realizing Trump had already withdrawn!

                  2. 1: Trump wasn’t President, Biden* was.

                    Since Biden has not willingly followed Trump’s plan anywhere else, no rational person could blame the pullout, let alone it’s f’ups, on Trump

                    2: We’ve been there almost 20 years. if, in that time, we were incapable of setting up a functioning government, then what, exactly, was our purpose in being there (other than to shovel lots of graft to the politically connected)?

                    It appears that the worst you can legitimately say about Trump is that he recognized the utter failure of our military “leadership” and diplomats in Afghanistan, and decided to stop providing the graft.

                    Which is not a bad thing to do

            2. You seem to be off on some sort of strawman tear. I said nothing about contingencies and if you have an issue the facts I offer, you should do better than ad hominem.

              I’m sure the desperate people sitting on the planes at the Kabul airport waiting to leave
              Quite the bad faith impossible standard you’ve got there.

              None of you are taking the tragedy of our adventurism in Afghanistan, nor even the unnecessarily chaotic pullout, as anything more than a partisan cudgel to bang the table about.

              It’s pathetic.

              1. Biden is LEAVING Americans behind. When he swore he would not do so.

                You cannot sugar coat this. He fucked up and lied to people. And then his admin tried to blame the people who did not get out.

                1. No, Biden made the best decisions he could in a rapidly changing theatre of operations. 98% of the Americans were evacuated.

          3. You know that number is unanswerable . . .

            We got damn near everyone out.

            “There’s no way we can know how many American citizens were there, but I solemnly assure you the number we got out was damn near that number we can’t know!”

            1. Yes, that’s right. We know a rough number with pretty good confidence, but not an exact number.

              Not being precise does not mean not being accurate.

              1. We know a rough number with pretty good confidence, but not an exact number.

                Why? It’s not like you’re eyeballing the number of marbles in a jar. Either you have an accurate system for tracking ingress and egress of your citizens in a country you’ve controlled for the past 20 years, or you don’t. And if you don’t have an accurate system, by definition you don’t know how far off your count might be. And if you know how far off your count is, by definition you know how many there really are. You can’t salvage this.

                Not being precise does not mean not being accurate.

                Given that “precise” and “accurate” are synonyms, you’ve done nothing here but twist yourself into a pretzel knot trying to defend the indefensible (albeit in an impressively small number of words).

                1. Bzzzt!

                  Suppose you have 23.527 ounces of water in a jar.

                  23.5 ounces would be accurate

                  20.12475 ounces would be precise.

                  1. Or to put it in terms of target shooting:

                    Shoot a grouping of 6 shots.

                    Precision = The diameter of the smallest circle that can be drawn around all 6 bullet holes.

                    Accuracy = The distance from the center of the above circle to the bull’s eye.

                    1. Or to put it in terms of target shooting:

                      Yeah, if we change the context from the a count of human beings to the aim/spread of a cluster of bullets, I cheerfully grant you those terms could mean different things. But so what?

                    2. Those terms mean different things in every context.

                  2. Suppose you have 23.527 ounces of water in a jar. . . .
                    20.12475 ounces would be precise.

                    So in your view, a measurement can be off by 10-20% but still be “precise” because you pack a bunch of made-up significant digits on the end of the made-up number? That seems to be pretty much the opposite of how Sarc was trying to use the term.

                    1. No, in my view, and this is how the terms are used in fields like statistical process control, “precision” actually IS how finely you do your measurement: “refinement in a measurement, calculation, or specification, especially as represented by the number of digits given.” While “accuracy” is how close the measurement is to the real number: “the degree to which the result of a measurement, calculation, or specification conforms to the correct value or a standard.”

                      It’s quite possible for something to be precise as can be, and wildly inaccurate, or fairly imprecise, but quite accurate.

                      And, of course I made up the freaking digits, it was an illustration of the concept!

                    2. Ah, now seeing your definitions, it seems like you’re mixing up nouns (“accuracy” and “precision”) with adjectives (“accurate” and “precise”). The exercise here is not measuring to N significant digits the value of a continuous variable (e.g., a human’s weight on a scale). The exercise is counting an integer number of units (i.e., the number of humans in a country). In that context, it’s tough to see any real-world airspace between a precise count and an accurate count. And as I said in the first place, the thesaurus has my back on this.

                      I further note that Sarc retreated with his tail between his legs several hours ago.

              2. Yep.

                We know there were ~20k Americans to get out

                We know the US only got out 6k
                https://nypost.com/2021/08/31/biden-claim-90-percent-of-americans-out-of-afghanistan-edited-by-white-house/

                What we don’t know is what math method you’re using to turn 30% into “damn near all”

          4. Sarcastr0 brags: “We got damn near everyone out”

            https://nypost.com/2021/08/31/biden-claim-90-percent-of-americans-out-of-afghanistan-edited-by-white-house/

            The US military is claiming we got 6k out. Sarcastr0 claims we got 20k out with, so far as I can find, no links to back up this ludicrous claim.

            We’ve got planes with 1000+ Americans on them waiting to take off from Afghanistan, but being blocked (either by the Taliban, or by the US State Dept, it’s not clear).

            But “We got damn near everyone out”!!11!

            No.

            It was a cluster f*ck from beginning to end, we’ve abandoned thousands of Americans in Afghanistan, and probably tens of thousands of our Afghan allies, while bring tens of thousands of unvetted Afghans into the US.

            If that’s your idea of “success” or “competence”, you’ve just pissed your credibility all over the ground

      4. Pre-COVID, LaGuardia used to handle about 80,000 passengers a day, so 20,000 in a few weeks in not particularly impressive.

        1. LaGuardia is not Kabul. Why did you try and make this analogy?

          1. Because modern air control systems should be able to do better, and because if the Administration had actually not caved to the Taliban in June and had not abandoned Bagram the situation evacuation could have been much more orderly.

            Really there is no reason to offer apologies for a poorly planned mission or for the naivete of Mr. Biden and Blinken. The level of leadership is on a par with thepoor leadership in the pandemic which was even criticized strongly by an NPR reporter today.

      5. Really Sarcastr0?

        Last I heard the Biden* Admin was claiming they got 6,000 Americans out.
        https://nypost.com/2021/08/31/biden-claim-90-percent-of-americans-out-of-afghanistan-edited-by-white-house/
        At the Pentagon on Monday, US Central Command boss Gen. Kenneth “Frank” McKenzie told reporters that US military aircraft evacuated 6,000 Americans.

        Later in the briefing, McKenzie tweaked his statement: “We have evacuated more than 6,000 US civilians, which we believe represents the vast majority of those who wanted to leave at this time.”

        When did they jump to 20k?

  2. The real answer to this is for the US Congress to pass a law analogous to the Protection of Lawful Commerce in Arms Act (PLCAA) for abortion.

    Liberal US cities would regularly try to sue firearms manufacturers into submission in the early 2000s. Thus the PLCAA was passed, protecting them in 2005. An amendment to the bill was made which mandated safety locks on handguns.

    Democrats hold a majority in the House, majority in the Senate, and the Presidency. They should easily be able to pass an analogous bill, which would protects providers of abortion from being sued under SB8. For those who argue “fillibuster”, a modest pro-life amendment (like the safety hand lock amendment) should easily convince moderate Republicans to not filibuster.

    Then, everything is as it should be. Congress makes laws, in response to outside actions.

    1. “a modest pro-life amendment (like the safety hand lock amendment) should easily convince moderate Republicans to not filibuster.”

      Extremely modest and extremely very moderate.

      “Congress makes laws, in response to outside actions”

      Outside actions? Is this some kind of joke?

      1. Yes, a state or series of states passing laws that Congress doesn’t like as a whole count as outside actions. Outside of Congress.

        1. Oh, I see, I guess.

    2. Democrats hold a razor thin majority in the House, and have a tie in the Senate, which their VP can break, but if they lose even one Senator, there’s no tie to be broken. And some of their Senators are from pro-life states.

      While I don’t doubt they could make this a “fall on your sword” vote, and stand a good chance of passing it, they can only pull that sort of thing on rare occasions, or else end up a permanent minority.

      1. This supposedly means a great deal to Democrats. If you’re not going to “fall on your sword” for something that means a great deal to your party then what’s the purpose of having a party?

      2. There are also Republicans like Susan Collins and Lisa Murkowski who support abortion rights. I very much doubt this would be a party line vote.

        1. No, that’s true. If the Democrats make this a fall on your sword vote, a couple of Republican Senators might decide to join in.

          I think they’re unlikely to do it as a gesture, though, and unless they think the Supreme court can be rolled, that’s all it would be.

        2. Indeed. If you put a modest amendment on the bill (For example, restricting abortion at 30 weeks and beyond to just issues are physical health of the mother or child), it would likely get many people signed onto it.

          1. And I think a lot of abortion rights supporters would go along with that. I would. Not all of us think abortion should be legal until ten minutes before the baby’s head hits the birth canal. Unfortunately, both the pro life and pro choice movements tend to be run by the extremists.

            1. I’ve observed that before: The pro-life organizations are run by people who think birth control is immoral, and the pro-choice organizations are controlled by people who are comfortable with literal infanticide. Organizations on both sides are fueled by the larger mass of people with more moderate positions.

              I think this is because the courts have taken abortion policy out of the realm of political compromise. A pro-life supporter doesn’t have to care if the people at the top oppose birth control, because the courts wouldn’t allow them to get their way anyway. And a pro-choice supporter doesn’t have to worry about their leadership’s support for infanticide, for the same reason.

              Well, actually they should worry about it; While the courts wouldn’t allow infanticide to be explicitly legalized, they certainly will allow a state government to decide, as in NY, that they’re not actually going to lift a finger to enforce laws against it. And the courts aren’t going to do anything about regulatory obstacles being thrown in the way of developing better birth control, either.

            2. But by putting that modest amendment on, the odds of it getting fillibustered go down dramatically.

              A legislative response really is the proper response here.

            3. A reminder (yet one more damn time) :

              Per the CDC, 91 percent of all abortions are performed in the first trimester and 98.7 percent of abortions are performed during the first 20 weeks.

              https://www.motherjones.com/kevin-drum/2019/04/raw-data-abortions-by-week-of-pregnancy/

              When Armchair describes his compromise of “restricting abortion at 30 weeks and beyond to just issues are physical health of the mother or child”, he almost precisely describes the status quo. When Brett talks about “pro-choice organizations are controlled by people who are comfortable with literal infanticide”, he’s just full of shit.

              In either case, an emphases on the ever-shrinking percent of abortions late into term is driven by one thing: That is the ONLY area where the Right’s jihad gets any real public support. Given that, they are the ones who relentlessly politicize the terrible choices women and doctors face late into pregnancy.

              And the Pro-Choice groups trying to secure the rights of women who face those choices? They aren’t attempting to alter the current situation, but protect it. It’s a reaction to the bait&switch strawman tactics of America’s Taliban, who need the issue of late-term abortions for political viability. The real question is what happens when large numbers of American wake up to find this was always about banning everything, right down to multiple methods of contraceptives?

              I suspect the side who has lived off anti-abortion posturing these past decades will be the biter bit.

              1. “When Brett talks about “pro-choice organizations are controlled by people who are comfortable with literal infanticide”, he’s just full of shit.”

                I really think you need to look at the changes NY made to their abortion laws.

                1. You need to stop taking LifeSiteNews as an authoritative source you don’t need to double check.

                  The law only allows abortion after 24 weeks when the fetus is not viable or ‘the abortion is necessary to protect the patient’s life or health.’
                  If you want to assume doctors lie, you can. But that doesn’t seem like the fault of the pretty common sense law.

                  1. “The law only allows abortion after 24 weeks ”

                    Which law is that? Does it apply in all 50 states?

                  2. “The law only allows abortion after 24 weeks when the fetus is not viable or ‘the abortion is necessary to protect the patient’s life or health.’”

                    And then gets rid of every single enforcement mechanism to assure compliance with this. They don’t even have to have somebody present for post-viability abortions to take care of the baby if born alive, anymore.

                    It’s elective abortion right up to birth, and maybe slightly beyond, with a wink.

                  3. “to protect the patient’s life or health.’

                    And since “health” includes” “mental health”, that restriction is utterly meaningless.

                    So, are you a total ignoramus on the subject, or just a liar?

                    Any restriction that doesn’t say “serious threat to the physical health of the mother”, and then define “serious threat” tightly enough so that normal pregnancy doesn’t qualify, is a joke.

                2. From the link above we see the numbers of abortions after 30wks “are so tiny that they register as 0.00 percent”. So Brett’s fantasy of wantons, hussies & slatterns conspiring with murderous doctors has to go. No doubt it is a useful fantasy, much like the high-living Welfare Queen & her perpetually new Cadillac. It just doesn’t track much with real life.

                  Again: It was the Right who politized these small numbers of exceptional cases. The Left’s protections for women and doctors facing terrible late-pregnancy situations is a response to the Right’s demagoguery – not the infanticide zeal of Brett’s fever dreams.

                  1. “From the link above we see the numbers of abortions after 30wks “are so tiny that they register as 0.00 percent”

                    So that should be easy for Democrats to approve banning them then.

              2. “When Armchair describes his compromise of “restricting abortion at 30 weeks and beyond to just issues are physical health of the mother or child”, he almost precisely describes the status quo”

                Which is why it’s a good compromise that may be easily acceptable to Democrats. It affects very few abortions.

                ” That is the ONLY area where the Right’s jihad gets any real public support. ”

                Which again, is why it’s a good compromise.

                1. 1. Your “compromise” is current constitutional norm

                  2. The Left accepts that; the Right vehemently rejects it.

                  3. The Right won’t compromise with late-term abortion as their carrot. Their focus on that issue is tactical subterfuge alone.

                  1. ” Your “compromise” is current constitutional norm”

                    Not quite. States are free to have abortion legal up to any time they want, until birth. I’m not familiar with any federal law or SCOTUS decision that actually BANS abortion at 30 weeks. Perhaps you can inform me of them?

                    “The Right won’t compromise with late-term abortion as their carrot.”

                    Perhaps try it? It’s a hell of a thing if the supposedly “pro-life” GOP says they won’t ban late term abortions.

                    1. SCOTUS has allowed abortion bans after fetal viability so long as there are exceptions for the health of the woman. The problem is defining what constitutes an acceptable health exception and perhaps more importantly who passes judgement on whether the exception passes muster.

                    2. You’re going the other way Josh. Here’s the issue.

                      1. Abortion laws are decided on the state level.
                      2. Except Roe v Wade limits states from banning abortion before viability.
                      3. There’s no SCOTUS decision or Federal law that bans abortion itself at any gestational time.

                      So, if a state chooses (and some do), perfectly healthy mothers can abort perfectly healthy children at 30 weeks, 35 weeks, etc.

                      A “reasonable” federal amendment might overrule these states and ban perfectly healthy mothers from aborting perfectly healthy children at 30 weeks plus.

                    3. I think I see. You want a law/court ruling/amendment that prevents states from banning abortions in some cases and requires them to do so in others. Perhaps. But even in that case, the devil is in the details. I already said what constitutes a permissible exception from the (now-required) ban for health reasons is vague, and so too is the “undue burden” standard on what regulations are permissible when states are prevented from banning abortions. Just consider the difficulty in judging the federal partial-birth abortion ban.

                    4. Indeed. Much has been made of the point that “almost no abortions” happen at 30 weeks plus.

                      A federal law enforcing that, except at grave risk to the mother’s life, would make a good deal of sense, and would encourage compromise with Democrats on protecting abortion providers from being sued under SB8

                  2. 1. Your “compromise” is current constitutional norm

                    2. The Left accepts that; the Right vehemently rejects it.

                    Really?

                    So why do Senate Democrats always filibuster Born-Alive Abortion Survivors Protection Acts?

              3. GRB writes:
                When Brett talks about “pro-choice organizations are controlled by people who are comfortable with literal infanticide”, he’s just full of shit.

                If that were true, the “Born-Alive Abortion Survivors Protection Act” would have not been filibustered by Democrats. but since 48 voted against it, “people who are comfortable with literal infanticide” is the correct way to describe the Democrat Party

          2. “For example, restricting abortion at 30 weeks and beyond to just issues are physical health of the mother or child”

            Your modest amendment is more radical than Roe v Wade, which would permit that at 24 weeks.

            1. The problem is there are enough fanatic abortionists with MDs who would sign off on the “physical health of the mother is in danger” exception, under all cases. It happens in Europe all the time.

              1. That’s why such declarations need to be subject to review and sanction, just like if a doctor decided heart surgery was medically necessary. That was the problem with Doe v Bolton, it gave doctors a right to make those decisions without worry of consequences if they weren’t defensible.

                You need review boards.

                1. Brett, does it surprise you to discover how often your libertarian predilections lead you to demand tyrannical policies?

                  1. Do you suppose that, if a doctor declared somebody needed open heart surgery, the decision would be unreviewable?

                    1. Granted, I don’t do health care law, but I would be surprised if every decision to perform surgery gets reviewed. It strikes me that there are enough surgeries performed every day that if all of them had to be reviewed the hospitals would accomplish little else.

                  2. So basically, when you say that you want an exception for the health of the mother, you don’t really want that exception to be limited to have any teeth. Any quack doctor (maybe even a chiropractor or psychologist) should be able to make that declaration with no review?

                    1. Nisliko, google “false alternative”. It’s the name of a logical fallacy.

                    2. Krychek,

                      The appropriate example here is the UK. Abortion is actually illegal in the UK, under the Abortion Act of 1967. Except for the following conditions.

                      (a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or (b) that the termination of the pregnancy is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or (c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or
                      (d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.

                      In the UK there were 200,000 abortions in 2018. In a court decision, UK doctors decided the following

                      “In R v British Broadcasting Corporation, ex parte ProLife Alliance, Lord Justice Laws said: “There is some evidence that many doctors maintain that the continuance of a pregnancy is always more dangerous to the physical welfare of a woman than having an abortion, a state of affairs which is said to allow a situation of de facto abortion on demand to prevail

                  3. Stephen, does it surprise you to discover that your definition of “tyrannical policies” is “actually enforcing any law I don’t like”?

                    It doesn’t surprise me

                    1. Greg J, in my book, tyrannical policies include suppression of civil society institutions and professions which compete with government for control of social checks and balances. Note that the, “review,” Brett demands is legal review, not professional review by doctors—let alone letting medical professionals on their own decide which standards for review.

                      There was a time lasting until a few decades ago when the notion that civil institutions were a valuable check on government excess was considered part of normal conservative philosophy. Of course, movement conservatives threw that out, along with every other principled conservative doctrine that got in the way of using, “own the libs,” as a fits-all formula for every political controversy.

                      How about you? Do you have any conservative principles which would ever lead you to back a liberal policy in a particular case? Can you even define conservatism, except as anti-liberalism?

                    2. “There was a time lasting until a few decades ago when the notion that civil institutions were a valuable check on government excess was considered part of normal conservative philosophy”

                      Yes. Then they were pretty much all “captured” by the political left, and now they’re consistently a bunch of politicized left wing garbage institutions. And that thought went from “it can happen” to “it will never happen”

                      Go review the “1200 public health professionals letter on the George Floyd protests”. You know, the one that said that it was wrong to expect those protesters to follow the “public health guidelines” that they’d been attacking other people for not following, just one week before.

                      Because “racism” is a bigger public health threat than Covid.

                      Or, heck, take a look at the Biden* Admin and other polities “vaccine mandates”.

                      The Biden* Admin one doesn’t include Post Office workers. You know, those people who are regularly interacting with the public, and handling things that then go to the public?

                      So far as I know, none of the “vaccine mandates” being proposed anywhere apply to public school teachers. You know, the people who are screaming that schools must be virtual / 8 year olds must be vaccinated, before school can happen in person?

                      Or then we could look at the ABA, and their politicization of judicial nomination “reviews”.

                      Care to show me that I’m wrong on any of the above?

                      We don’t have a “civil society”, any place where the Left has any power or influence. I think that’s sad. But that’s the reality.

                      So no, neither I, nor any other sane individual, would trust a group of abortion doctors to tell us “this abortion was really necessary”.

          3. “30 weeks”

            At 30 weeks, there is 100% viability. Its a fully formed human being.

            Good compromise!

            1. In fact, that’s about 6 weeks past the current point of viability.

              1. There are currently living and healthy adults that were 20-week premature births, so it’s closer to 10 weeks past.

            2. Bob,
              At least it is better than post-birth infanticide.
              Learn to be thankful for small things.

            3. There are a couple states that allow abortion after viability.

          4. If you put a modest amendment on the bill (For example, restricting abortion at 30 weeks and beyond to just issues are physical health of the mother or child), it would likely get many people signed onto it.

            And you’d lose twice as many Democrats.

            Because they are religious zealots on this subject

    3. As a matter of practical politics, you are forgetting about the filibuster. This type of law would not come under the budget reconciliation vehicle.

      While Congress could pass a budget that penalizes states that pass laws like this when it comes to federal spending, and this could be done by a simple majority, South Dakota v. Dole, which was somewhat strengthened in the Sebelius case which said states get a choice about Medicare expansion, limits the federal government’s power to use spending to coerce states to change their own laws.

      1. Yet another reason to abolish the filibuster. It makes it almost impossible to achieve a political solution, even when said solution enjoys broad public support. Part of the reason everything becomes a matter for the courts.

        1. The count in the Senate IS the primary determinant of “broad public support,” not “polls.”

          1. No it’s not. Not when 400,000 Wyoming voters can cancel out 30 million Californians.

            1. A bare majority will have a majority in the Senate, if that bare majority is uniformly distributed. The House assures laws must be popular, the Senate exists to require laws to not just be popular, but more than locally popular.

              A majority of the population would be cool with abolishing all federal taxes for anyone within 50 miles of the ocean, because over half the country’s population lives that close to it. But you’d be hard put to get a majority of the Senate voting for that.

              1. But it’s not uniformly distributed, and I fail to see the attraction of uniformly distributed. And I doubt that the ocean state senators would vote to abolish federal taxes for anyone within 50 miles of the ocean because at that point the treasury would run completely dry. The ocean state senators get that you need responsible governance, even if it occasionally disadvantages your constituents.

                1. The point is that, in a federation, the people living over here aren’t supposed to be ordering around the people living over there.

                  1. Any law at all consists of “ordering about” other people; that’s why it’s called a law. And the flaw in your system is this very conversation: This is an issue that desperately cries out for a political solution. There is a political solution that commands majority support among the American people, but probably not among 60 senators. So, instead of getting the political solution we need, we’ll have another 20 years of litigation instead.

                  2. people living over here aren’t supposed to be ordering around the people living over there.

                    So why do the people in Wyoming and South Dakota get to order around people in California?

                    1. The same reason people in Vermont and Delaware order around people in Texas.

                    2. And that’s a fairly silly argument, Armchair Lawyer, even for you. Texas is the one exception, but if you look at the overall picture, Republicans far and away benefit from two senators per state far more than Democrats do. Otherwise your side wouldn’t be so opposed to changing it.

                    3. “So why do the people in Wyoming and South Dakota get to order around people in California?”

                      Because if that rule hadn’t been there, the US would never have been created

                      Look, stop being such a whiny baby. you want your Senate vote to matter more? Move to Wyoming or South Dakota.

                      Not willing to do that? then suck it up and stop whining

                    4. Generally the people in Wyoming and South Dakota DON’T get to order around people in California, unless they have a heck of a lot of people in other states agreeing with them on it.

                      Because in order for a federal law to pass, it has to pass both the Senate AND the House, and California has House votes proportional to population.

                      The Senate is a veto point, it can’t pass anything that doesn’t have majority support to begin with.

                    5. Krychek,

                      “And that’s a fairly silly argument, Armchair Lawyer, even for you. Texas is the one exception, but if you look at the overall picture Republicans far and away benefit from two senators per state”

                      We’ve rehashed this several times, but let me ask. Are you objecting to small states having equal representation in the Senate? Or are you objecting to the GOP having a modest advantage?

                    6. Armchair Lawyer, both.

                      With respect to the GOP advantage, I think the procedural rules, which would include how Senate representation is divvied up, should be ideologically neutral. It’s one thing to lose when the process was fair; it’s another thing entirely to lose when you know you would have won with a fair process. (And it’s not a modest advantage; without it, the GOP probably would not have controlled the Senate at any time in the past fifty years.)

                      And on the small state/big state issue, a state line is an arbitrary line on a map; live voters are not. At lot of those lines were drawn where they were out of historical accident. It’s not about California and Wyoming; it’s about individual voters who live in California and Wyoming. And why one of them should count so much more than the other is beyond me.

                    7. Krychek,

                      The first bit is the large state – small state divide.

                      The answer there, is so that the large states don’t utilize their power unfairly in respect to smaller states that are further away. The United States is exactly that. A union of states. Not individual provinces or individual counties. There is a long history, both international and national of the “centralized, populous, rich” areas using their advantage to the disadvantage of those “rural, far away, little areas.” The Senate is there to counterbalance that. It acts as protection for a minority, for a voice. It’s counterbalanced by the House, which is based on population. Perhaps you think that shouldn’t be the case, but it’s worked out pretty well so far.

                      In terms of the GOP advantage, that’s a more recent item. Partisan advantage used to swing much further back and forth between Democrats and the GOP in the Senate. What happened however, is the Democrats decided they needed to be more “big city liberal” and abandoned the smaller, rural states. There were consequences, and advantages to this. The advantage is they could ring up bigger numbers in urban centers, not to mention dominating the media, Hollywood, and other areas. Very big advantages. The disadvantage is….they lost the rural states. It’s this type of situation the Senate was almost designed for.

                      If Democrats want to be competitive in the rural states, they need to adopt some of the values there.

                2. The ocean state senators get that you need responsible governance, even if it occasionally disadvantages your constituents.

                  Which is why the ocean state senators are all praising Joe Manchin for his current display of responsible governance rather than screaming at him and trying to find some way to force him to knuckle under so they can engage in yet another $3.5T of deficit spending this year. Riiiiight.

              2. Oh stop, Brett.

                You’re in love with geographic diversity but hate other kinds.

                If someone suggested that certain ethnic or religious groups should be given disproportionate representation to assure a broad base of support you’d pitch a fit. But because the absurd system we have helps your cause you come up with these ridiculous defenses.

                Try the China one next.

                1. Oh stop, bernard11.

                  You’re in love with skin color diversity but hate other kinds.

                  You can move to Wyoming, or Vermont or Rhode Island, any time you want more “Senate vote power”.

                  No innate characteristics required

                  1. I have not heard Bernard11 arguing for racial set-asides in Congress; when he does, you’ll have a valid claim that he supports skin color diversity.

                    But why should people have to move to be treated fairly?

                    1. Everyone IS being treated fairly.

                      Living on the coast in a big State gives you some advantages.

                      Living in the interior in a small State gives you other advantages.

                      Whichever advantages you value more, those are the ones you get.

                      We have freedom of choice, where your choices have actual consequences in your life.

                      There’s nothing in the world fairer than that

            2. You’re equating “broad public support” with “broad popular vote.” That’s not the way our system works.

              1. You seem not to understand what “public support” means.

          2. And not when it takes 60 votes in the Senate to do anything, making it a doubly anti-democratic institution.

            1. K_2,
              What is wrong with that? It keeps this country from going off the rails.
              You use the phrase anti-democratic in the same manner that the Taliban refer to you and me as infidels

              1. Whether it’s good policy or bad policy (and I will admit to thinking it’s bad policy) I was responding to the specific claim by Nisliko that Senate votes determine what is public opinion. It doesn’t.

                And in answer to your question about what’s wrong with it, look no further than this very discussion. There is broad public support for a legislative solution to the abortion question. It wouldn’t make either side completely happy, but nothing will. We can’t get it because of the way the Senate is structured. So despite desperately needing a political solution, instead we’ll have another twenty years of litigation.

                1. “There is broad public support for a legislative solution to the abortion question. It wouldn’t make either side completely happy, but nothing will. We can’t get it because of the way the Senate is structured”

                  The bigger issue, rather than the fillibuster, is that the parties are so set up to “campaign” that the issues become more important as campaigning points, rather than actually solving issues. It’s better to have it as a point of contention for many politicians, than to solve the problem.

                  1. You’re right there. But that’s possible in part because actually solving problems is so difficult because of how our polity is structured.

                    1. It’s not actually that difficult. There’s just more advantage for the majority party to not compromise, due to the optics.

                      “Compromise” is looked at as weak. It’s better to shove the most extreme bill possible through the system and fail 90% of the time.

                      A bill that has 80% of what you want and 10% of what you don’t want and succeeds 70% of the time is a failure in the optics department.

                2. There is broad public support for a legislative solution to the abortion question. It wouldn’t make either side completely happy, but nothing will. We can’t get it because of the way the Senate is structured.

                  No. It can’t because the Left used the Supreme Court to hijack the issue, and pro-abortion zealots on the Left have made support for Roe and Casey a fundamental plank of the Democrat Party.

                  Which is why Democrats filibuster Born-Alive Abortion Survivors Protection Acts, and the Supreme Court struck down partial birth abortion bans

                  Because it’s the Left that is completely out of touch with the rest of America on abortion

                3. “There is broad public support for a legislative solution to the abortion question.”

                  But, what solution? Based on the polls I’ve seen, you could probably assemble a majority in favor of banning elective abortions at every stage of pregnancy, though it would be a close thing in the first three months. According to the Gallup poll, which last asked the question in 2018, 53% were in favor of elective abortions being illegal in the first trimester, only permitting abortions for cause. It’s not even a close thing after that.

                  Parental consent for minors to obtain abortions was wildly popular, as were waiting periods.

              2. There is a continuity between resoluteness and agility. We have always been more resolute. But now you have filibustering all policies by an opposing President out of sheer cussedness. Which has turned us into a very slow moving beast, even in times of crisis.

                Out of such lack of agility do empires fall.

                Not to mention the regular duties of Congress like budgets are becoming crises where none need exist.

                Taking poli-sci in early 2000 I rather liked how we are more resolute and less agile than parliaments. But at this point it’s becoming degenerate.

              3. It keeps this country from going off the rails.

                It also enables a minority to keep the country from moving on the tracks when it needs to get somewhere.

                You can have too many veto points as well as too few.

                1. “It also enables a minority to keep the country from moving on the tracks when it needs to get somewhere. ”

                  Yeah, it’s amazing how you’re only bothered by that part when you think you’re in the majority

                  it’s almost like you have no principles at all, just a lust for power

            2. A majority sets the rules. If the majority of the Senate doesn’t want the filibuster, they can change it.

              As you may remember, the Dems recently eliminated the filibuster for certain appointees, resulting in the appointment of Gorsuch and Kavanaugh.

              1. You attacked an ‘ought’ argument with an ‘is’ response.

                1. No I didn’t. I refuted the claim that the filibuster makes the Senate a doubly anti-democratic institution by pointing out that the filibuster rule is set by a majority of legislators.

                  1. The bottom line is still doubly anti-democratic.

                    1. “The bottom line is still doubly anti-democratic.”

                      The bottom line is it’s supposed to be “anti-democratic”, because our Founders rightly didn’t trust mob rule.

                      But why are you bitching about “anti-democratic”?
                      Give you a hint: there’s nothing more “anti-democratic” than having the Supreme Court force the personal politics of its members on the entire country

                      Row, Casey, Lawrence v Texas, Windsor, Obergefell, Bostock

                      We’ll know you hate “anti-democratic” things when you’re ready to reject all those SCOTUS decisions

                    2. Why should I take seriously someone who compares voters to mobsters?

                    3. “The bottom line is still doubly anti-democratic.”

                      Nope. If a majority says that nothing happens without 60 votes, the majority gets what it wants.

                    4. Me: The bottom line is it’s supposed to be “anti-democratic”, because our Founders rightly didn’t trust mob rule.

                      Krychek_2: Why should I take seriously someone who compares voters to mobsters?

                      WTF? Are you really that ignorant of history? Of the English language?

                      Look up “mob rule and democracy”

        2. “Yet another reason to abolish the filibuster.”

          Do it. Its been 7+ months, all we get is whining about it.

          1. Replace Manchin and Sinema with genuine Democrats and we will.

            1. No Democrat, genuine or otherwise will replace Manchin.

              Sinema is a down the line liberal democrat. She is saving you from yourself. Post 2024, the filibuster will save your a**.

              1. Yup. Two years of a Republican majority and they can shut down all sorts of Federal programs, the dept of Labor, Agriculture, Education, etc.

                Fans of limited government should want to be rid of the filibuster.

                1. I’ll be happy to get rid of it, when my side is in charge

                  The big difference is, i won’t be engaging in a bunch of hypocritical whining about it

            2. West Virginia Manchin? The state that voted Trump by more than 30 points?

              It’s an amazing fact that Manchin is a Democrat at all. A “genuine” democrats would be long gone.

        3. Bullshit. The filibuster is one of the great enablers of political solutions because it forces the majority party to consider the concerns of the minority. It is a critical counterbalance to the Tyranny of the Majority problem.

          Note that the Senate got along just fine for two hundred years with the filibuster in place. Everything only became “a matter for the courts” relatively recently.

          Is the filibuster anti-democratic? Yes, of course it is. And that’s its great strength. It inhibits temporary majorities from trampling the rights of the current minority. If your idea is such a good idea, you should have no trouble convincing enough of the population to overcome a filibuster. If you can’t convince that many people, then your idea is not as good as you think.

          1. I haven’t noticed that parliamentary democracies that don’t have anti-democratic institutions (Canada, Japan, the UK) suffer from the long parade of horribles that supposedly accompany democratic governance. To the contrary, in those countries, elected officials can actually keep their campaign promises by passing the laws that they promised the voters during the campaign. And if those laws turn out to be ill advised, there will be another election in a couple of years to undo it.

            We, on the other hand, suffer from political dysfunction unknown anywhere else in the Western world, in which we have the worst of all possible worlds because the extremists on both sides need to be placated.

            1. *cough* brexit. What was the margin on that again?

              1. No matter what system one has, there will always be occasional unfortunate results; that’s life. But overall, we have political dysfunction unknown anywhere else in the Western world.

                1. To be fair, that’s only true lately.

            2. And there’s the problem. What you call dysfunction, I call liberty. Our system is designed to make passing laws difficult so that power-seeking busybodies will stay out of the way of the rest of us.

              Some countries use other techniques than the filibuster to balance the risks of majoritarianism. The UK, for example, depended for many decades on the highly anti-democratic influence of the monarchy. But other countries lack those controls – and if you can’t see the ill effects as they whipsaw their systems back and forth into economic ruin, all I can say is that you must not be looking very hard.

              1. Not all laws are impositions on liberty. Some are spending. Or dealing with a crisis. Or overturning illiberal Supreme Court decisions.

                Knee-jerk reductionism is fun and all, but not real.

                1. “Not all laws are impositions on liberty. Some are spending.”

                  Spending requires taxing. Which is an imposition on liberty. You can argue that it is a necessary imposition on liberty, but it is still an imposition.

                  1. Not all spending is a spending increase.

                    1. So?

                    2. So your argument that spending requires taxing wouldn’t apply.

                    3. All spending requires taxing, some of the taxing is deferred, or accomplished by inflation.

                2. “Or overturning illiberal Supreme Court decisions.”

                  You mean like Roe? Or Bostock?

              2. So then why have elections? Why not just pass a law that says your side will hold power in perpetuity? It would save a huge amount of money and be far more honest.

                And if it’s economic ruin you’re worried about, how about our multi-trillion dollar debt, brought about in large part because under our system of government, nobody can be held accountable?

                1. And by the way, Rossami, that’s not even how it works. The American people want health care, so your side wasn’t able to block it; we got Obamacare. But what anti-democratic institutions did accomplish was having to placate everybody to get it passed, meaning it’s far more costly, inefficient, and worst-of-both-worlds than it would have been had poor President Obama not had to get everyone on board. Even with 60 votes in the Senate, he couldn’t afford to lose anybody, so a lot of compromises were made that made the final product far worse than it would have been with a simple, straightforward single payer system.

                  That’s what your system gets us. Not more freedom, but more inefficiency when laws finally are passed.

                  1. The problem is Krychek, if you ask people, most people like their own private health insurance.

                    When you start talking about taking away their health insurance, they object.

                    1. And in most countries with single payer health care, you have multiple insurance companies competing with each other. It’s not a monopoly. Look at Holland or Singapore.

                      But that aside, you’re arguing the merits of health care whereas I’m talking about the process. I don’t see how anyone on any side of the issue can claim the process got us a good result.

                    2. K2, did you just try to claim that Singapore has a single payer health care system?

                  2. ” The American people want health care, so your side wasn’t able to block it; we got Obamacare”

                    And then the American public voted your party out in the next House elections, with the largest swing of seats post war.

                    Now, if we’d been “democratic”, those election results would have meant ObamaCare was gone.

                    But Democrats used filibusters and vetoes to keep it, neither of which are the least bit “democratic”.

                    What’s it like being totally unprincipled?

                    1. I wouldn’t know. You’d have to ask someone who’s totally unprincipled. So, maybe you could tell us.

                    2. Here, Krychek_2, let me help you:

                      A “principle” is a rule you follow, even when you don’t like the outcome.

                      So, what are your political principles? And when have you followed them to the detriment of your short term political interests?

                      If you can’t answer that question, then you are unprincipled. prove me wrong, here, tell us your principles and how they affected you

            3. Those are small, homogenous countries with per capita GDP perceptibly below ours. Why would they be good role models?

              1. But if democratic governance were the horror conservatives tell us, why wouldn’t it show up in those countries as well?

                1. It shows up in their lower per capita GDP.

                  1. I doubt that’s the reason for the lower GDP.

                    1. Believe what you want to believe, but don’t claim that it’s based on facts when it’s based on intuitions and opinions.

            4. K_2,
              Please study the Knesset and the Italian Chamber of Deputies

              1. So you’ve cited two counter examples. As opposed to the dozens of parliamentary democracies that overall are working just fine.

          2. because it forces the majority party to consider the concerns of the minority.

            This is nonsense, Rossami. The minority, at least today, has zero interest in working with the majority. The Republicans simply want to stop the Democrats from doing anything.

            Besides, exactly how small a minority does the majority have to cater to? Right now, Senators representing significantly less than 40% of the population can filibuster.

        4. I’m curious Krychek_2, were you publicly advocating for getting rid of the filibuster during the Trump years?

          Did you call for the Senate to dump the filibuster of Supreme Court nominees when the Demos were filibustering Gorsuch?

          Or is this a belief that was curiously in remission when it would have helped the GOP?

          1. I am opposed to the filibuster no matter which party has control, and even when the filibuster helps my side.

            Though full disclosure requires pointing out that if not for anti-democratic institutions, there would have been no Trump years.

            1. “Though full disclosure requires pointing out that if not for anti-democratic institutions, there would have been no Trump years.”

              Bzzt, thank you for playing, but no.

              Trump, not being a moron, conditioned his campaign on the rules governing the election.

              If there were different rules, he would have run a different campaign.

              How many Republicans in CA / NY don’t bother to vote, because they know it won’t make a difference?

              Trump won the election because he followed the rules, and paid attention to them while he was running his campaign

              The fact that the Clinton campaign was full of morons who acted otherwise does not detract from Trump’s victory.

              You can not say “gosh, if the rules were completely different, and everybody’s incentives were completely different, then the vote totals would all be exactly the same, and my person would have won.”

              That is a truly insane counter-factual

            2. Me: I’m curious Krychek_2, were you publicly advocating for getting rid of the filibuster during the Trump years?

              Krychek_2: I am opposed to the filibuster no matter which party has control, and even when the filibuster helps my side.

              That doesn’t answer the question. The question is “did you speak out and support for the removal of the filibuster when it was helping Democrats? Did you say ‘hey, Dems, this is wrong and we shouldn’t be doing it”?

              Or did you think “yes, I pretend to be against the filibuster, but I’m not going to speak out against it when it’s helping my side”?

      2. “you are forgetting about the filibuster.”

        Except for the part where I mention the fillibuster…

    4. The Democrats won’t take that route because it would lend legitimacy to the PLCAA itself.

    5. The real answer to this is for the US Congress to pass a law analogous to the Protection of Lawful Commerce in Arms Act (PLCAA) for abortion.

      Yes.

      Gee, i wonder why they’re not trying to do that?

      Could it be because such a law is not popular enough to pass?

      Hmm

      1. Oddly enough, no. I think there are 2 issues.

        1. It’s a more useful issue to campaign on. It’s less useful to actually solve it.
        2. Some Democrats would like to avoid such a vote.

        1. I agree with “2”

          Which gets back to my point: it doesn’t have the support to pass.

          Hell, > 41 Democrats Senators filibuster Born-Alive Abortion Survivors Protection Acts whenever they come up. There is no possibility of reasonable compromise on abortion, because the Left is not wiling to compromise

  3. I don’t think a suit against Texas, as a whole, would even work. State governments are not unitary entities.

    At least one U.S. constitutional provision seems to contradict that. Article IV decrees, “The United States shall guarantee to every State in this Union a Republican Form of Government.” How would that be possible without treating states as parties subject to judicial compulsion by the United States?

    Notably, S.B. 8 may violate that Article IV provision. If a, “Republican Form of Government,” is read to include political accountability for law enforcement, then S.B. 8 pretty plainly puts Texas outside Article IV. It is crucial that S.B. 8 actually forbids enforcement by state officials. That shows beyond question that S.B 8 is designed to evade state political accountability for law enforcement, by devolving that power onto an undefined and practically unlimited faction of self-appointed enforcers.

    The U.S. should seek to vindicate its Article IV powers by a federal court suit against the Texas judiciary. The suit should seek to bar the Texas courts from hearing any cases brought by politically un-unaccountable plaintiffs claiming powers under S.B 8.

    More generally, it could be that other laws which seek to similarly empower private citizens to do law enforcement without political accountability should get Article IV review. The key question in such review would be whether, as in Texas, state officials are barred from enforcement action.

    1. Suppose S.B. 8 was the same as it is now, except state officials were not barred from enforcement action.

      If whether or not state officials are barred is the key question for Article IV review, how would such review be effected if they weren’t barred?

      If they weren’t barred, state officials would be subject to a pre-enforcement challenge, but the private citizens empowered by S.B. 8 still could enforce the law as prescribed, even if state officials could not, no?

      1. Doug, my thought would be that after state officials lost on constitutional grounds, those same grounds would be applied as precedent against self-appointed citizen enforcers, pretty quickly making it plain that the law was a nullity, and ending its power to chill the right to privacy.

        1. Wouldn’t the same thing be true for subsequent suits under this law after the first one filed by a private plaintiff goes down in flames?

    2. Would the feds give up their laws against defrauding the government, with the provisions for private enforcement? Or are those laws given a pass under the FYTW clause?

      1. Cal, pretty obviously, federal laws are not subject to an Article IV challenge based on a republican form of government for the states.

        But taking your objection in more general terms, in the federal context maybe there could be challenges to those laws based on separation of powers, or anti-delegation doctrines?

    3. Has the guarantee clause ever been litigated?

      1. One state tried to remove the politics from redistricting not so long ago, by creating a state board severed from the legislature’s control. It went to the Supreme Court, being sued because it was no longer a republican form of government. The court ruled it was close enough though.

        In summary, they removed the politics by keeping the politics as required by the Constitution.

        But now the wishes of the people of a state are getting in the way again. Time to flip sides.

        As policy, the law is awful. But the facetious manipulations are vomitous. Or in long standing with power and corruption, your choice.

    4. Is it your position that federal Qui Tam actions are unconstitutional? Discrimination lawsuits by testers who don’t actually intend to take the jobs or buy the houses involved (etc.), just identify and punish the defendents’ behavior? Environmental laws that let groups like the Sierra Club sue polluters or developers?

      Federal law is full of laws, mostly passed by progressives, that authorize enforcement by provate attorneys general.

      The Texas Supreme Court has said that the Texas Constitution imposes a standing requirement analogous to the federal one. So if people need a nexus to sue, that makes the law no different than the 3 examples I gave above.

      I recognize the law has some potential Due Process problems, like only one side getting a potential for fees.

      If Roe stands, everyone understands it’s unconstitutional and will be so found as soon as someone with standing sued. But if we separate out the constitutionality of abortion, then as long as a nexus requirement is imposed that is parallel to the feseral one, it’s no different in principle from some of the highly creative standing decisions the Supreme Court has made, like an advocacy organization having standing because if the law weren’t there it would be devoting its efforts to something else.

      It doesn’t work to find creative ways to support creative ways to come up with standing for advocacy groups when you agree with the law, then claim it’s a gross violation of the Constitution the minute you don’t.

      What’s sauce for the goose has to be sauce for the gander. If this is unconstitutional, then the Sierra Club having atanding to challenge a developer, the NAACP having standing to challenge a real estate agent, etc. etc. etc., are also unconstitutional.

    5. “by a federal court suit against the Texas judiciary. ”
      Stephen what is the case against the judiciary. It has not done anything.

  4. “Federal interests”?

    The supremacy clause reads, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

    In that Arizona immigration case, the Supreme court applied this to an executive branch policy of failing to enforce a law ‘made in pursuance thereof’, which I thought was a bit backwards. On its face, the clause should have been cited by the state in its defense!

    So I suppose that extending the supremacy clause to apply to federal interests, stupid as it would be, can’t be ruled out. But it seems an unlikely stretch on the part of this Court.

    It really looks to me like the current administration/Congressional majority either have made some mistake about how prepared the Court is to just ditch the idea of limited federal powers entirely, or are actively daring the Court to strike down major initiatives in order to have an excuse to pack it.

    1. No, I disagree here. As long as Roe stands, then it lies within the Due Clause of the 14th Amendment, and hence within Congress’ textual enforcement power. This means that Congress cery likely could pass a law specifically directed at this. Even if the Supreme Court overturns Roe, Congress could use its spending power to considerable effect if it wanted.

      So my answer to you is the same as my answer to Stephen Lathrop.

      There can’t be one constitution for laws we like, and another, completely different constitution for laws we don’t like. We have to apply the same constitution to both.

      1. Not sure what you’re disagreeing with. Sure, if you had a federal law that was on point, you’d absolutely have a basis for taking Texas to court. We could have arguments about whether the federal law was constitutional, but you’d have the basis for litigation.

        But a “federal interest”? That’s not a statute. Nobody votes on “federal interests”, they’re not subject to the presentiment clause, they’re not written down in a statute book anywhere. It amounts to the executive claiming, “I care about this, so I win!”

      2. ReaderY, where do you think you see me advocating picking and choosing? You do concede, don’t you, that the federal constitution for the states cannot be identical to the federal constitution for the national government. They cannot both have the same sets of powers.

        1. That doesn’t imply that the states could not be structurally set up the way the federal government is, internally treating counties, say, the way the federal government treats states.

          But, yes, the republican form of government clause can’t really apply to the federal government, because the USA isn’t a republic. It’s a federation of republics.

          1. Brett, a more trenchant reason it does not apply to the federal government is that there is no way to prescribe what form of government the U.S. will have. That question is left to the sovereign People to decide at their pleasure, as they go along. They did decide, and decreed in the Constitution, that states would have a republican form of government. That too they could change at pleasure, but so far they haven’t done it. So for now, the states must have a republican form of government, and the nation can have any form of government whatever.

          2. But, yes, the republican form of government clause can’t really apply to the federal government, because the USA isn’t a republic. It’s a federation of republics.

            Yeah, no.

        2. I think the Supreme Court defeated narrow conceptions of what constitutes a republican form of government when it upheld ballot propositions. The argument there was similar to yours. A republican form of government implies powers are delegated to representatives, not exercised by the people themselves.

          If the argument didn’t fly for legislative powers, why should it fly for wxecutive wnforcement powers?

          Moreover, I don’t think anybody has ever suggested that state analogues of federal laws that give advocacy groups standing to enforce environmental, discrimination, and various other laws through private civil suits are unconstitutional as violating a republican form of government.

          1. ReaderY, do you know of any of those laws which explicitly bar government officials from enforcing them?

            Once again, the challenge—which so far, no one has risen to meet—is to show that S.B. 8 leaves Texas law enforcement officials politically accountable for Texas law enforcement, as they must be if Texas is to have a republican form of government. Can you show they are politically accountable under S.B. 8?

      3. “There can’t be one constitution for laws we like, and another, completely different constitution for laws we don’t like. We have to apply the same constitution to both.”

        Bravo, ReaderY

  5. We could wait for actually filed argument to come out later today, but I guess it’s better for some to speculate what the argument will be.

    Helps keep some straw in the diet.

    1. Theories are fun. If they predict successfully, that goves confidence as to its correctness. If the prediction is counter-intuitive, all the better.

      1. Right, you can’t test your theories unless you’re willing to make predictions in advance, ‘retrodiction’ is just an exercise in curve fitting.

        1. I knew you were going to say that!

          1. Good, now let’s do this another 10,000 times, so that you can get some statistical significance.

        2. Except these aren’t theories. They’re partisan outrages based on imagined filings that have not yet, and probably will not, happen.

          The impatience of Blackman’s partisanship is legendary. I’m sure you’ll find enough to get angry about if something gets filed.

  6. The subject matter of ” abortion ” doesn’t suspend the Federal Rules of Civil Procedure or the Texas Rules of Civil Procedure. The actual “fight/ dispute ” is over which court will hear a case on the merits. Texas SB8 is drafted in a manner that would have Texas State Courts having jurisdiction before any Federal Court.

    The abortion provider businesses/ industry should stop ” clutching their pearls ” and take the Civil Procedure steps that everyone has to follow. Have a “friendly lawsuit ” filed in a court of proper jurisdiction. State trial court. State appellate court. Texas Supreme Court. Certiorari to SCOTUS.

    The SCOTUS shadow docket ruling explicitly stated that it did not rule on the merits. The legal issue was 1. Could the court enjoin a named plaintiff from filing a cause of action when the plaintiff had filed an affidavit that he was not going to file a lawsuit. 2. Could SCOTUS enjoin a specific state court Judge from hearing a cause of action/ case in controversy that HAD NOT been filed or contemplated. SCOTUS can not and does not enjoin something that is not a case in controversy.

    I believe that the procedural drafting of the law can cause great mischief. The procedural drafting can be used to delay a host of Constitutional Rights. Anti Gun activists can wreck havoc. It’s a Pandora Box.

    My prognostication is that Dobbs will confirm the essence of Casey and affirm the legal standard of ” undue burden “. It will reject the less than full majority of Whole Women’s/ June Medical that advocated a ” weighing of benefits to the burdens ” of the State regulation. 15 weeks will be found to not be ” undue ” burden. The generally consistent standard in Europe and other countries where advocates of applying “international law ” in SCOTUS decision making is that at 12 to 13 weeks State / Government has a right to implement significant restrictions and regulations. US is an extreme outlier for abortions in the 3rd trimester and up to the point of actual and complete delivery. The US will settle to something close to the abortion regulatory regime of Europe.

    1. I think your prediction is largely accurate. The US is an outlier in terms of abortion ‘rights’, exactly because the courts took the decision out of the political realm, and just handed one side a win.

      They’ll probably put it back in the political realm, but only part way.

      1. Much like for discrimination on the basis of sexual orientation. The Court just handed the LGBTQ crowd a win, whereas political compromise would have been best, such as prohibiting discrimination in housing and restaurants, and permitting it for bakers, photographers, artists, and the like.

        1. Ever since FDR won some constitutional ‘changes’ from the Court by threatening packing it, achieving by judicial fiat what would be toxic to legislate has been a central tactic for the Democratic party.

          It’s why for so many years they were much more obsessively careful about vetting their Supreme court picks than the Republicans were; The Republicans thought of them as judges, the Democrats as a standing constitutional convention.

          1. Precisely. And that’s why the Democrats howl when Republicans have done in the past 10 years what the Democrats have been doing for the past 80 years.

          2. “Ever since FDR won some constitutional ‘changes’ from the Court by threatening packing it, achieving by judicial fiat what would be toxic to legislate has been a central tactic for the Democratic party.”

            Except for the minor point that FDR threatened to pack the court because it was striking down popular legislation. And it was conservatives that had been using the court to achieve by judicial fiat what was too toxic to legislate, and had been doing so for upwards of fifty years.

            1. “Except for the minor point that FDR threatened to pack the court because it was striking down popular legislation.”

              Which just happened to be unconstitutional on account of exceeding the power of the federal government. The courts are supposed to enforce those limits.

              1. “just happened to be unconstitutional”

                That’s your opinion. Likewise, a lot of people are of the opinion that what Texas is doing is unconstitutional. That doesn’t change the fact that conservatives were using the courts to force onto people economic policies that were broadly unpopular, and which they couldn’t achieve in the political arena. FDR was right to hit back at the court for doing so.

      2. Justice Ginsberg, in 1992 before being on the Court etc, stated essentially the same regarding Roe. By taking abortion out of the political process ( like the rest of the Western Culture/ Civilization) it created discourse in the US. Europe and Canada don’t have the hostilities of the US regarding abortion EVEN THOUGH they have a more restrictive regulatory/statutory scheme.

  7. It’s really sick how the Democrats are having a mental breakdown over being told that they can’t kill their children.

  8. Any ideas what Prof. Blackman is trying to say when he claims state judges lack Article III standing to defend a federal lawsuit?

    1. I read that as Blackman saying, awkwardly, that the feds can’t sue the state judges. I am not at all certain that is correct.

    2. That’s not even close to what he said. What he said was that Article III requires adversity – that is, two parties on opposite sides of a matter who will each argue their positions vigorously – an actual controversy. State judges (in aggregate) can’t be on the defense side of that argument because doing so would put them in a conflict of interest for all future cases involving that law. If 100% of a state’s judges must recuse themselves from any case involving a state law, that’s kind of an obvious problem for the law.

      So Blackman is saying that standing means that the feds can’t make ‘all state judges’ the defendants in this case. But if not the state judges, then who is the proper defendant in this case?

      1. Aren’t any, until they file suit. That is the legal trick here – that Article III of the US Constitution requires a case or controversy for federal jurisdiction, and there isn’t legally one yet. And no one to enjoin. When someone sues an abortion provider under the law, then there would be a case or controversy, and the federal courts can be utilized to enjoy the plaintiff(s) in the suit. Fine, but that injunction wouldn’t probably apply to non-parties.

  9. Government led by devout Catholic devises novel ways to kill babies.

  10. Bob,
    Loki reminded us of the old phrase cafeteria Catholic. I suggest that you look it up.

    1. Come on, man. Don’t tell other faiths how to be.

  11. I mean, it makes as much sense as a law that allows people who have zero standing to sue so…

  12. Soon, we would have a redux of the sanctuary city litigation: can the federal government impose new conditions on federal funding? Everyone, prepare to switch sides.

    I think those cases were decided incorrectly, and that the Feds should clearly be able to block funds to cities that are blocking the enforcement of Federal law.

    But my side lost.

    There’s nothing “switching sides” about saying “you made the precedent, now you have to live with it.”

    1. Everybody agrees that Congress generally has the power to inpose conditions on receipt of federal funds, at least up to certain limits.

      But the Executive can’t impose new conditions by regulation. Congress itself must impose them by statute. If Congress wants to impose conditions, it haa to pass a law saying so. That’s what Pennhurst held.

      Congress chose not to impose the conditions the Trump administration wanted. It lost on that just as it lost on getting full funding for a border wall.

      Once you frame it in terms of “can the President simply ignore Congress’ decision not to impose conditions on states and just go ahead and impose them anyway,” the courts’ decisions are clearly right.

      This wasn’t a conflict between states and the federal government. It was a conflict between Congress and the President. And the Constitution makes it clear that Congress, and not the President, holds the power of the purse.

      1. The argument was a bit more nuanced than that, actually. Congress actually HAD imposed a requirement, that recipients of the funds had to be in compliance with “all applicable federal laws”.

        The Trump administration took the position that “all applicable federal laws” were all laws that were applicable to the jurisdiction applying for the funds.

        The Court agreed with opponents that it was just federal laws that were applicable to the subject of the grant.

  13. Its really time to think about a peaceful divorce..

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