The Volokh Conspiracy
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Less than 48 hours after a federal court enjoined S.B. 8, Texas has filed an emergency motion for a stay with the Fifth Circuit. Texas asked for an administrative stay "as soon as possible," and an emergency stay pending appeal by Tuesday.
Here is the summary of the argument:
The United States has obtained an injunction prohibiting the adjudication of suits in state court under a law to which it will never be subject, against a State which can never enforce the law, based on real-world disputes which do not affect it, through a cause of action Congress has never authorized. This Court's immediate intervention is necessary to vindicate Texas's sovereign interest in preventing a single federal district court from superintending every Texas court.
The district court's injunction violates the separation of powers at every turn. First, the district court exceeded Article III's limits. The federal government is an improper plaintiff because it has no standing to "merely litigat[e] as a volunteer the personal claims of its citizens." Pennsylvania v. New Jersey, 426 U.S. 660, 665 (1976) (per curiam). And Texas is an improper defendant because it "has no interest ad-verse to" those challenging the constitutionality of S.B. 8, which is enforced through private litigation. Muskrat v. United States, 219 U.S. 346, 361 (1911).
Second, the district court wrongly granted an injunction in a proceeding Congress never authorized. Indeed, Congress's detailed remedial scheme for the enforcement of Fourteenth Amendment rights precludes recognition of the free-floating cause of action "at equity" that the district court found. The United States cannot seek such an extraordinary, novel form of equitable relief when Congress has denied it a cause of action through which to do so.
Third, a federal court cannot enjoin a state court "from proceeding in [its] own way to exercise jurisdiction," Ex parte Young, 209 U.S. 123, 163 (1908), let alone enjoin all of a State's courts from doing so. Such an injunction—which the district court ordered—is "a violation of the whole scheme of our government." Id.; see also Whole Woman's Health v. Jackson, No. 21-50792, 2021 WL 4128951, at *5 (5th Cir. Sept. 10, 2021) (per curiam). A court "cannot lawfully enjoin the world at large," Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 832 (2d Cir. 1930) (Hand, J.), let alone hold Texas responsible for the filings of private citizens that Texas is powerless to prevent.
The district court refused to even consider the State's request for a stay, concluding that Texas "forfeited the right to any such accommodation" because its law was "offensive." App.937. The State respectfully requests an emergency stay pending appeal by Tuesday, October 12, 2021, at 9:00 a.m., and an administrative stay as soon as possible to prevent it from being held in contempt for the actions of third parties it cannot and does not control.
The panel may issue an administrative stay. Over the past 48 hours, Whole Woman's Health has resumed performing abortions, but Planned Parenthood has not.