The Most-Straightforward Path To Stay The S.B. 8 Injunction: There Is No Equitable Cause of Action

The Fifth Circuit should grant the stay based on the District Court's Ninosplaining of Grupo Mexicano

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On Wednesday evening, the Western District of Texas enjoined S.B. 8 in an 113-page opinion. In time, I hope to write about the decision at some length. Here, I will focus on the most-straightforward path to stay the injunction.

The United States does not have an equitable cause of action in this case (my tenth point in this post). The most relevant precedent is Grupo Mexicano de Desarrollo, SA v. Alliance Bond Fund. In Grupo Mexicano, Justice Scalia wrote  that "the equity jurisdiction of the federal courts is the jurisdiction in equity exercised by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act, 1789 (1 Stat. 73)." No one can contend that the sort of lawsuit DOJ brought here would have been recognized when the Constitution was ratified.

The District Court does not even quote this passage. Instead, Judge Pitman attempts to tell us what Justice Scalia really thought:

 Relying on Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc., 527 U.S. 308 (1999), the State argues for limiting equitable actions to the exact claims available at common law. (Resp., Dkt. 43, at 14). That reliance, however, is misplaced. Grupo Mexicano at most stands for the proposition that federal courts have jurisdiction over suits in equity, in which the broad equitable remedies that predate the Constitution remain available. The formal source of that jurisdiction is codified in the Judiciary Act of 1789, as discussed in Grupo Mexicano. However, the principle itself is broader and is not defined by that Act. Indeed, by the time he returned to the question in Armstrong, Justice Scalia—the author of Grupo Mexicano—had dispensed with any need to locate this power in the Judiciary Act. Nowhere in the latter case did he cite to the Judiciary Act. Rather, he wrote of general equitable powers "tracing back to England," translating to the "judge-made remedy" in the federal courts. Armstrong, 575 U.S. at 327.

Judge Pitman's Ninosplaining will not stand on appeal. As a general rule, we do not presume that a Supreme Court justice "dispensed" with a prior precedent, unless there is an express disavowal of that prior precedent. Moreover, Judge Pitman badly misreads Armstrong. That case rejected the argument that the Supremacy Clause creates a cause of action. It was such an easy case. There was no need to discuss the Court of Chancery in 1788.

Judge Pitman added:

It is the essential nature of equity that it is not subject to strict limitations, unless and until Congress acts directly to restrict it.

No! This statement gets Grupo Mexicano completely backwards. The presumption is that the courts cannot expand new equitable causes of action. The recent evisceration of novel Bivens claims is consistent with this presumption. Rather, Congress has the power to create statutory causes of action.

Finally, the court conflates equitable causes of action with equitable remedies:

The State is mistaken in searching for a blueprint of the cause of action here. For the United States' cause of action is a creature of equity, a centuries-old vehicle which eschews categorical definition. That remedy is available where no adequate remedy exists at law; any attempt to codify such situations would be futile, and likely require powers of clairvoyance which no legislator possesses.

These concepts are distinct.

Seth Barett Tillman and I discuss this all-too common conflation in our new article, forthcoming in the Georgetown Journal of Law & Public Policy:

Article III of the Constitution gave the federal courts jurisdiction over both law and equity. And in equity, there is a distinction between equitable relief and equitable jurisdiction. Litigants often conflate these concepts. Moreover, litigants likewise conflate causes of action grounded in law with equitable causes of action. In the Emoluments Clauses litigation, the plaintiffs did not assert a traditional equitable cause of action that established federal court jurisdiction. The Supreme Court has not recognized a free-floating equitable cause of action to challenge ultra vires government conduct. . . . .

In the Emoluments Clauses litigation, the plaintiffs contended that the federal courts had equitable jurisdiction to enjoin ultra vires government conduct. For example, the Maryland and D.C. Attorneys General argued that "'[t]he ability to sue to enjoin unconstitutional actions by state and federal officers'" is "'the creation of courts of equity,'" and reflects "'a long history of judicial review of illegal executive action, tracing back to England.'"239 The plaintiffs invoked the term "equity," as if seeking an equitable remedy establishes the equitable jurisdiction of the District Courts. (See p. 36, 39)

In all other contexts, the DOJ routinely advances the Grupo Mexicano argument. This argument in United States v. Texas represents yet another instance in which DOJ departed from longstanding agency precedent.

The District Court's cursory treatment of Grupo Mexicano provides a simple basis for reversal.

NEXT: Second Amendment professors brief in Supreme Court right to bear arms case

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  1. According to this learned judge there is nothing more important than the right to an abortion. Take your guns? No problem. Lock up political prisoners far away from their home without bail? Sure thing. Tell a woman (but look at the footnote....not all pregnant people are women....seriously a judge wrote that....a federal judge) that she can't murder a baby after it has a heart beat. Hold the phone!!!!

    This country is screwed.

    1. Everyone agrees that no one can murder a baby. Now, killing a fetus is entirely different. Fetus not equal to a baby. As you know. Please try harder to not be a moron.

      1. The point at which a fetus becomes a baby is not for YOU to say.

        Please try real hard to not be a moron and you might someday succeed.

        Didn't happen today, though.

        1. The point at which a fetus becomes a baby is not for YOU to say.

          Because you already called dibs on that decision?

        2. Martinned is right - and that's why this debate will never be resolved until we come together on a common definition of "life". Neither of you has a unilateral right to decide when a fetus becomes a baby.

          The legislature, on the other hand, does have the right to make that decision on our behalf. That's one of the things we pay them to do. I don't like the particular decision that the TX legislature made (and I really don't like that they tried to used a back door to impose that standard on the rest of us) but they did set the definition at 'heartbeat'.

          1. The legislature, on the other hand, does have the right to make that decision on our behalf.

            The courts have the final say about what words mean, both the words that are in the constitution and the words that are in statutes. None of those words mean anything until they're applied by a court.

            1. The courts have the final say about what words mean...

              The courts have the power to interpret words when used in legislation, and if they do so with honest attention to the evidence as to what the legislature meant than they are doing their job.

              But your op was an attempt to police what Jimmy the Dane meant by "baby", and the courts have no say in that.

              The legislation, as it happens, doesn't use the word.

              1. ...but santimonica's op, which you are supporting, ...

              2. Actually, Jimmy was trying to police how a judge can use the word "baby" (even though the judge in question only used that word in his imagination).

                1. Wrong. The person responsible for choosing to use the word "baby" to refer to a fetus in "Tell a woman... that she can’t murder a baby after it has a heart beat" is clearly Jimmy the Dane.

          2. Martinned is right...

            Why would you say that?

            He jumped immediately to a baseless assumption. Couldn't you tell?

      2. This is perhaps the dumbest comment ever to grace this blog. And that is with AK providing a lot of hefty competition lately.

      3. Santamonica - Isn’t a fetus a human being at a certain stage of development? If not, what else is it? It’s not dead, and it’s not a species other than human.

        It would be nice if we could debate abortion on the terms of what it actually is. Abortion is a collision of rights. The mother has the right to control their body, and the new human at some point has the right to its life. The issue should be when does that right accrue to the new human. I’m not smart enough to know that answer, but it would be nice if we as a society could answer it in a manner that made the most people satisfied.

        But the self-styled Party of Science (what a fucking joke) won’t have that conversation. Let’s at least admit that an abortion terminates a human life. Because it does.

        1. That's broadly my approach too. For me the key question is how long should a pregnant person reasonably need to decide they want an abortion? And when do you start that clock?

          1. ...the key question is how long should a pregnant person reasonably need to decide they want an abortion?

            What does that even mean?

    2. They use "pregnant person" a few times, but they're actually not consistent with it throughout all hundred some pages. I can see keeping "women" when quoting from opinions and referring to actual organizations but they left quite a few sentences where it should have been changed to "pregnant person" unless the court is contending that while not all pregnant people are women, only women both have a right to an abortion and can have an abortion performed on them. Numerous instances of both were not changed but I don't think the judge would contend that pregnant people who identify as, say, men do not have a right to an abortion nor can they have one actually performed.

      1. The judge didn't alter quotes, or names of organizations, I'll give him that much. But every time HE referred to a woman getting an abortion, they were a "pregnant person". He was very consistent about that.

        1. That's what happens when you let the Gays have judging jobs...

        2. Well, the section about burdens seems to go back and forth rather than being consistent. To use one example:

          These requirements led approximately half of the abortion clinics in Texas to close, meaning that women forced into the few remaining clinics faced longer wait times, crowding, and longer distances to travel to providers.

      2. Someone should invent a general word for "person who can have a baby", and "person who can impregnate that person", so we can tell the difference.

        1. I'm not sure why. The English language has managed just fine for centuries without such words.

          1. Go home, Martinned, you're drunk. The idea was rather obviously that those words were "women" and "men".

            1. In your version of English maybe, but in the English that I speak every day I use the words "man" and "woman" for lots of people who can't have a baby or impregnate anybody. For example, I would not hesitate to describe my mother as a woman, even though I'd be quite surprised if she had another child (as would she, presumably).

              1. You really can't decide between being pedantically narrow and insisting that everything has nuance, can you?

                1. Ballpark half of women can have a baby, that doesn't seem "pedantically narrow" to me.

                  1. Ballpark even fewer "persons" can have a baby, so -- going back to the original point -- "pregnant person[s]" is clearly less useful or accurate than "pregnant women".

                    But you were too busy "owning the English speakers" to remember the context of your pedantry.

                    1. No, because pregnant women is under-inclusive in this context, since people who are not women can also be pregnant.

                    2. People being bitter about failing biology class doesn't make you right.

                    3. Are you talking about hypothetical radical medical procedures, (Such as I've mentioned.) or just women who prefer to pretend they're men?

                    4. "No, because pregnant women is under-inclusive in this context, since people who are not women can also be pregnant."

                      Nope. They cannot. Missing the necessary equipment.

                      I'm discussing biology, though, not feelings. Explain, BIOLOGICALLY, how non-women can be pregnant.

              2. You are free to use language however you like. What you are not free to do is misrepresent how language has been used historically. Like the original responder said, we did have words for this.

                You want to change the usage? Fine, but at least be honest and transparent about that. People like you are the opposite of the Bostock decision. You want to claim that gender and sex are different, and then eliminate sex completely from any language usage.

                As I've been saying ever since the "controversy" became popular, we didn't segregate public bathrooms for gender, it was for sex. That's why there are often urinals only in the men's room. If there's no biological difference, then there is no reason for segregated such facilities.

    3. Sure you can kill a baby. You can even kill a fully grown person. Just claim self defence.

      (For the record, this is not me trolling Jimmy. Rather, this is me trying to point out that the rules he thinks are categoric are much less so on closer inspection.)

      1. What court will be convinced by "That fetus was COMING RIGHT AT ME! I was terrified for my life"?

        1. That depends. Are they black? And is the killer white and/or a cop?

          (Sorry, but you walked right into that one.)

          1. Do you think being a racist edgelord is funny? I don't.

            1. If you want to be naive about the racism of American courts/juries, go ahead. But don't expect me to do the same.

              1. No, you're just going to normalize racism by making a joke about it being applied in an extremely exaggerated manner. Racist edgelord, as diagnosed.

                1. If you think racism in the US isn't already pretty normal, you must have been living under a rock.

                  1. Oh? Please provide evidence that racism in the US is "pretty normal". I'm curious as to how you define that, and how you intend to demonstrate it.

            2. I don't think trying to cancel people based upon your faux outrage is OK, acceptable, or "funny" despite the fact many on the left find it knee slapping hilarious.

            3. This blog is practically dedicated to it...

          2. The door you just walked into was summoned up from your deranged imagination, and no one else has walked into it.

            No, it does not "depend". No court will be convinced by 'That black fetus was COMING RIGHT AT ME! I [white and/or a cop] was terrified for my life'?”, either.

    4. Jimmy, if you hate your fellow countrymen as much as you say and think this country is as doomed as you say, why don't you leave?

      Perhaps because you don't believe what you say...

      1. Because it is my country.

      2. Strawman. He said you and your ilk have resulted in the country being screwed, not that he hates his fellow countrymen. There's no reason for him to hate me, since I agree with him. Or for him to leave, since the problem may be more easily solved by him by requiring or persuading you (plural) to leave or otherwise reduce your number or effect.

        That there is the unpleasant necessity that this happen is sufficient to declare the country screwed, but it is not yet certain that the country is doomed, even if the probabilities were to lean that way.

    5. " This country is screwed. "

      This country is great, has been getting better throughout our lifetimes, and is positioned to continue to improve.

      1. High taxes. Rising crime. Rapid inflation. Corruption. The new racism. Just to name a few. Yeah this country is doing great....

        1. Jimmy, the first two letters of SNAFU seem to apply.

          1. I remember a better country, so no.

            1. Is there anything more to this blog beyond racists, misogynists, gay-bashers, xenophobes, superstitious fossils, and disaffected clingers pining for illusory good old days?

              1. Hey, wormtongue, do you ever manage to allege anything directly, or would such an act be something that would cause you to dissolve like a witch doused in water?

          2. The highest inflation in over 3 decades clearly implies that the inflation level isn't normal.

            The same is true of the highest level of illegal immigration in decades. It can't be the highest level, AND normal.

      2. ^^^^^^^^^^^^^^^^^^^^^^^^
        Waste of brain cells warning
        ^^^^^^^^^^^^^^^^^^^^^^^^
        Kookland is performing his weird trick of "footnoting" his assertions with a music video. I didn't follow it, but hovering over it shows "youtube". So there's no need to click on it.
        ^^^^^^^^^^^^^^^^^^^^^^^^

  2. "The Supreme Court is to be invested with original jurisdiction, only 'in cases affecting ambassadors, other public ministers, and consuls, and those in which A STATE shall be a party.'...In cases in which a State might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal."

    /Federalist 81 (Hamilton)

    https://avalon.law.yale.edu/18th_century/fed81.asp

    1. Nice that Hamilton thought so, or anyway so expressed himself, but the actual Constitution reads as follows:

      Article III, Section 2, Clause 1
      The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

      ...and that's what controls.

      1. I don't see the conflict.

        1. SCOTUS original jurisdiction is not exclusive

        2. Then reread it.

          Hint: Cases "in which a State might happen to be a party" is the larger set.

          1. ...than the subset of cases of original jurisdiction that involve States.

    2. Biden should have filed a motion for leave to file a complaint against Texas as an original action in the Supreme Court. Thomas would have had to vote to hear the case, because the court has an obligation to hear original jurisdiction cases.

  3. I don't disagree that the court has divested itself of its powers at an alarming rate post- Warren, but that doesn't make it right. Instead of viewing these legislative intrusions on the powers of the judiciary as violating the separation of powers, SCOTUS has simply given ground. The equitable powers is one area. Causes of action another. As a criminal law practitioner, i have watched in amazement as they allowed habeas to be truncated by the legislature despite the clear intention of the framers that this not happen.

    But of course, this case doesn't require the court to resort to cowardice, it can just side with Texas because it doesn't believe in individual autonomy fire anyone but white males like Josh here.

    1. What race and sex were the justices in Roe?

      1. We all know only pansexual cat people of color who self identify as a native indigenous transcontinentals can ever legitimately adjudicate anything...

  4. Sour grapes much, Prof. Blackman?

    1. No need for any if he's right that this decision is as dishonest as he points out that it is, and the Circuit or SCOTUS does its job. We'll see, but he's convincing and you obviously have no points to make against his, so get ready to pucker.

      1. Among other things I have learned on this blog over the years:

        - Rights cannot be denied just because government cannot find someone to uphold them (refusal to grant marriage licenses to gay people)
        - Rights cannot be denied because of a confluence of laws that, each taken individually, are reasonable by themselves.

        But hey, using the mechanisms of government to allow private citizens to deny rights of others is fine apparently.

        It's a good thing the 14th says slavery shall not exist, and not just Congress shall pass no law, apparently. Otherwise people could sue to re-enslave with a similar facetious tweak.

        1. I think you're thinking of the 13th amendment, and that one is also less categorical than people think.

          https://en.wikipedia.org/wiki/Penal_labor_in_the_United_States

          1. It's almost like someone wrote "except as a punishment for crime whereof the party shall have been duly convicted" as an explicit exception to the 13A's ban on involuntary servitude. Weird, huh?

            1. Hang on, your response to me pointing out that the rule in question is less categorical than Krayt seemed to think is to point out that the rule is less categorical than, euh, huh? I can't figure out whether you're trying to disagree with me, Krayt, both of us, or neither of us.

              1. The rule is plenty categorical, you merely assumed that the existence of an (explicit) exception was some kind of rebuttal to his point. It's not.

        2. You have apparently learned all sorts of nonsense reading this blog, but whether the nonsense you have learned was actually in this blog I cannot tell.

          Did you learn here that SB8 allows private citizens use the mechanisms of government to deny actual rights to others? I haven't noticed that said here, and it's false, so maybe you are hallucinating.

          1. You don't think a court process is a mechanism of government?

            1. Did you learn here that SB8 allows private citizens use a court process to deny actual rights to others? I haven’t noticed that said here, and it’s false, so maybe you, too, are hallucinating.

  5. Good to know you’re carefully evaluating the merits of the decision, not just looking for the easiest way to overturn it.

    1. Who says Professor Blackman is evaluating the merits? More likely he is dancing around the maypole to avoid addressing the merits. He seems to be allergic to acknowledging the binding and dispositive effects of Roe v.Wade and Planned Parenthood v. Casey.

      1. roger was being sarcastic. I think you and he agree.

  6. It took an adverse ruling on the merits for any of the conspirators to acknowledge the pendency of United States v. Texas. I'm not holding my breath for a merits discussion.

    1. How long did you hold your breath to so thoroughly deprive your brain of oxygen as to cause you to emit that meaningless sentence?

      1. There is an unseemly reluctance on this blog to acknowledge that Roe v. Wade and Planned Parenthood v. Casey are the law of the land, binding on all state and federal courts.

        1. There is a reluctance everywhere to acknowledging what the law actually is vs what one thinks it should be. This blog and Roe/Casey is just one of many examples.

        2. Maybe because either (a) those are not being directly discussed, as here where the issue is a procedural one or (b) it is being advocated that SCOTUS should overruled those cases.

          Just because Roe and Casey are the law of the land, does not mean that all other legal issues fly out the window.

        3. SB8 is consistent with Casey. This has been explained to you, but you are too dim to take it in.

  7. In time, I hope to write about the decision at some length.

    I believe that's what we call a "true threat".

    1. Quick, call the AG so he can get his team on it.

  8. the most-straightforward path to stay the injunction

    Sure, but why would you want to?

    1. Maybe he objects to all the bogus reasoning in the decision that he points to.

      How does that not occur to you?

  9. Now I'm no big city law professor (just a simple country hyperchicken) and I'm not entirely sure about the argument in the opinion but I get what he's going for. On the other hand, much of Josh's rapid response seems to be more of a weird tangent about something irrelevant in the end rather than a smocking gun for obvious overturning.

    Blackman:

    Moreover, Judge Pitman badly misreads Armstrong. That case rejected the argument that the Supremacy Clause create a cause of action.

    Pitman:

    Similarly, the holding of Armstrong itself, that there is no independent cause of action under the Supremacy Clause, has no bearing here, where the United States does not purport to bring suit under that clause. Rather, it moves under the equitable cause of action available to parties with standing who can show an ongoing violation of federal law

    Scalia:

    It would be strange indeed to give a clause that makes federal law supreme a reading that limits Congress’s power to enforce that law, by imposing mandatory private enforcement—a limitation unheard-of with regard to state legislatures.

    To say that the Supremacy Clause does not confer a right of action is not to diminish the significant role that courts play in assuring the supremacy of federal law. For once a case or controversy properly comes before a court, judges are bound by federal law. Thus, a court may not convict a criminal defendant of violating a state law that federal law prohibits.
    ...
    Thus, the Supremacy Clause need not be (and in light of our textual analysis above, cannot be) the explanation. What our cases demonstrate is that, “in a proper case, relief may be given in a court of equity . . . to prevent an injurious act by a public officer.”

    The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England. It is a judge-made remedy, and we have never held or even suggested that, in its application to state officers, it rests upon an implied right of action contained in the Supremacy Clause.

    I need more Ninosplaining.

    1. Did you expect Professor Blackman´s seat of the pants analysis to be anything other than results oriented twaddle?

    2. smocking gun

      "They're down aisle 6, next to the T-shirt cannons."

      Sorry, was just too good...

    3. I'm not qualified to Ninosplain, or even to Joshsplain, but I think what he's arguing is essentially this. Grupo Mexicano held that causes of action in equity were limited to those recognized as of the passage of the Judiciary Act of 1789. Armstrong later held that the Supremacy Clause does not itself create a distinct cause of action. Pitman erred in over-reading Armstrong so as to contradict Grupo Mexicano by giving federal judges leeway to create new equity causes of action not recognized in 1789.

      Moreover, according to Blackman, Pitman and others go astray by conflating equity causes of action and equitable remedies, which are not the same. If there is cognizable cause of action before a judge, she has great latitude as to equitable remedies. That doesn't mean she can create a novel cause of action to get or keep jurisdiction in the first place.

      The passages you excerpt don't contradict any of this. None of the language from Armstrong narrows or overrules any part of the holding in Grupo Mexicano. So what we're left with is the following statement from Grupo Mexicano:

      "the equitable powers conferred by the Judiciary Act of 1789 did not include the power to create remedies previously unknown to equity jurisprudence."

      and Pittman's statement that:

      "It is the essential nature of equity that it is not subject to strict limitations, unless and until Congress acts directly to restrict it."

      These two statements are irreconcilable. Either Congress limited equity causes of action to those recognized in 1789 (Grupo Mexicano) or federal judges have carte blanche to invent new equity causes of action until Congress stops them (Pitman).

      1. Grupo Mexicano was about remedies, not causes of action. The cause of action there was an action at law, which no one challenged. The holding was that federal courts lack general equitable powers to enter a preliminary injunction to preserve assets to satisfy a later money judgment.

  10. Worth noting that Pitman also talked about the Second Amendment hypothetical:

    Equally plausible is that states at the other end of the political spectrum could use a similar tactic to ban or impermissibly limit another constitutional right, like a right grounded in the Second Amendment, to further a political agenda. This Court’s preliminary injunction, should it stand, discourages states from doing so: if legislators know they cannot accomplish political agendas that curtail or eliminate constitutional rights and intentionally remove the legal remedy to challenge it, then other states are less likely to engage in copycat legislation.

    1. Yes, the obvious logical conclusion is that if a scheme like this can be used to deprive people of one well established constitutional right, it can be used to deprive them of all the others. 1A, 2A, 14A, you name it.

      The only plausible explanation of how a court allows SB8 to stand is the tacit assumption that abortion rights are not really rights under the constitution. That, and some pretzel-emulating behavior as evidenced by Blackman's post.

      1. Yes, the obvious logical conclusion is that if a scheme like this can be used to deprive people of one well established constitutional right, it can be used to deprive them of all the others. 1A, 2A, 14A, you name it.

        Which is why it is already well-established that the first amendment constrains one private person's defamation suit against another. Whether they're entitled to an injunction barring enforcement is another matter, of course.

      2. "The only plausible explanation of how a court allows SB8 to stand is the tacit assumption that abortion rights are not really rights under the constitution."

        Well, yeah. They aren't.

        1. And yet, in the real world, they are. While that may change when Dobbs is decided, since 1973 it has been a right.

          1. And anyone who is truly "conservative" (or frankly anything other than anarchist) should want, for the conservative values of stability, settled expectations, etc., for things determined to be "rights" by the Supreme Court to be treated as Constitutional rights by the states and lower courts unless and until the Supreme Court reverses that determination. Otherwise, no rights are settled and states and district courts can trample any rights, including Second Amendment or what have you, until a new case makes it back to the SC to reaffirm what was already decided. Not enjoining SB 8 is adopting a very results oriented approach that can only result in chaos. Chaos is bad policy, bad for freedom generally (regardless of how you feel about any specific right), and bad for the legitimacy of the courts.

            I haven't heard anyone suggest with a straight face or remotely convincingly that SB 8 does not run afoul of Roe v. Wade. It clearly does. It can only be upheld if Roe v. Wade (and Casey) is overturned or significantly curtailed. It should be enjoined unless the Supreme Court does that.

      3. The only plausible explanation of how a court allows SB8 to stand is the tacit assumption that abortion rights are not really rights under the constitution.

        On the contrary, you're the one making an assumption: That SB8 violates abortion rights under the Constitution as declared in Casey. But it doesn't, as far as I can see, since so long as Casey is good law SB8's undue burden section prevents anyone from collecting damages or getting injunctive relief. Pitman goes through this long song and dance about how abortionists have been discouraged from providing abortions, but they can't create a cause of action based on worries that they are wrong about their clients having a constitutional right to abort.

        1. SB 8's undue burden section appears to me to create a bunch of intentional obstacles to anyone raising the undue burden defense and then appears to try to define undue burden more narrowly than Roe/Casey (SB 8 section 171.209(d) "A defendant may not establish an undue burden under this section by:merely demonstrating that an award of relief will prevent women from obtaining support or assistance, financial or otherwise, from others in their effort to obtain an abortion"). Yeah, so young pregnant woman, it is not enough that you "merely" can't get a ride, scrape up the fee, or perform the procedure yourself....basically, you have to do it all by yourself or you can't have an abortion. That is not, in any way, compliant with Casey.

          And this isn't even addressing, is it okay to say we will charge you with a crime for having a gun in your home, but then you can assert an affirmative defense under Heller if you want? That's not how law should work. SB 8 should not be enforced unless or until the Supreme Court overturns or restricts Roe/Casey.

          1. SB 8 in fact cannot in fact be used to award relief unless or until the Supreme Court overturns Roe/Casey. After that happens, if it does, the undue burden provision will still need to be interpreted, and the section you quote is guidance for that interpretation, not a loophole through which relief can be awarded absent the overturn.

            As to how the law not operating as it should work, that sailed when SCOTUS invented Roe.

            1. ...is not operating..,.

              Reason's comment software is trash.

              1. "Reason’s comment software is trash."

                So it suits you, then.

            2. That's simply not true, Gandydancer. SB 8 can be used to award relief even without overturning Roe/Casey, except for the fact that it is enjoined. The statute makes nothing contingent on overturning those cases except a provision which nullifies an affirmative defense if those cases are overturned. However, the provision I cited is fully operable without Roe/Casey being overturned (as written, but it is plainly unconstitutional under current law).

  11. I find myself very skeptical.

    The whole point of equity is to supplement the strict rules of common law with a more flexible approach.

    Once there is jurisdiction, I find myself very skeptical of claims that there is no remedy.

    1. Grupo Mexicano seems to weigh against that. Case held that where you have a claim for damages at law, the court cannot enter a preliminary injunction freezing assets to preserve a possible recovery. Even though the English chancery courts have been doing that since 1975 (they are called Mareva injunctions).

      1. I'm sorry, I was overhasty in replying. He's arguing that there's no cause of action rather than (what he might also believe is true but doesn't seem to argue in this post) that there's no jurisdiction.

      2. Equity exists where there is no remedy at law. There was a remedy at law in Grupo Mexicano.

        What is the remedy at law here?

        1. When someone brings a claim under SB 8, the court denies the claim on the grounds that the activitiy is Constitutionally privileged. It's like asserting a NY Times v. Sullivan defense in a defamation suit.

          1. Let me clarify the question. What remedy at law is available to the plaintiff in this lawsuit?

            In Grupo Mexicana, the plaintiff had a damages remedy available (or, if you prefer, a damages-based legal cause of action) . What legal remedy is available to the plaintiff, the United States, here?

            1. I understood the question. The issue here, however, is that the United States is essentially asserting that the cause of action that Texas has created for private parties (akin to a qui tam claim), is invalid, because the activity that forms the basis of such a claim is protected under the Constitution. The same thing that the Supreme Court held the First Amendment does in defamation suits in NY Times v. Sullivan.

              Why is there an equitable cause of action to assert a defense in advance, especially when the defense would be by private parties (abortion providers) in a private civil action?

              Could the United States have sought equitable relief against Alabma for having overbroad defamation law? I doubt it.

              1. You may or may not be right. But Grupo Mexicana does not appear tobsupport your argument. It applied a traditional maxim that courts should hesitate to fashion new equitable remedies when there is a remedy at law available to the plaintiff.

                That’s not the situation here.

  12. You say: "Once there is jurisdiction, I find myself very skeptical of claims that there is no remedy."

    I thought the original post was arguing that there was no jurisdiction rather than claiming that, even though there is jurisdiction, there is no remedy. Granted, there may be some weird cases where there is jurisdiction, a proven wrong, and no remedy. But I don't think the original post was arguing that this is one of those cases. (Whether he's right or wrong on the point he does make, I don't know enough to weigh in on.)

  13. Let's see which 3 judge panel gets the appeal. It's possible you will get a panel that agrees with Judge Pitman and allows the injunction to continue. Then you have to see what happens if the appeal goes up for en banc review.

  14. (Clears throat. Turns to face the crashing surf.)

    Injunctions could be sought to run against classes of people, not all of whom appeared in the action (and insulate multiple parties, not all of whom appeared in the action, from diverse claims) in the 18th century under the equitable remedy of Bill of the Peace. This remedy was sometimes used in American courts in the 19th century.

    (Turns away from the crashing surf. Trudges back to habitament.)

    Mr. D.

    1. I don't even think you need that. You could have an abortion provider (Planned Parenthood) sue for a declaratory injunction that the law violates the Constitution and is unenforceable.

      And no need for a Bill of Peace. Sue the State of Texas. The individuals here are acting as private attorneys general to vindicate Texas' law, not as private plaintiffs to vindicate their own harm or damages.

      A declaratory judgment against Texas would bind all future plaintiffs, IMO.

      1. No, they are suing for private receipt of statutory damages, not for Texas.

  15. " Judge Pitman's Ninosplaining will not stand on appeal. "

    How sad, then, that Judge Pitman did not attend South Texas College of Law, soak in the legal insights of Prof. Josh Blackman, and learn enough to avoid this mistake.

    The apparent lesson: Never settle for UT and Oxford for advanced degrees when you could benefit from a South Texas College Of Law diploma.

    1. Thank you for your usual empty, ad hominem blather. At least you are consistent.

  16. You should proceed directly to the appropriate federal courthouse and lecture this poor judge how to read law. I'm sure this would be appreciated and rewarded handsomely.

    1. No, no one should ever comment on the crappy job judges routinely perform when reading law that does not conform to their priors. Because they are never less than perfect, especially when agreeing with you.

  17. When you think of something funny to say, be sure to write it down.
    Instead of what you usually write down.

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