The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.