Breaking: DOJ Will Appeal S.B. 8 Case to Supreme Court

There is a risk taking this case to the shadow docket.

DOJ Spokesman Anthony Coley released a short statement:

"The Justice Department intends to ask the Supreme Court to vacate the Fifth Circuit's stay of the preliminary injunction against Texas Senate Bill 8."

There are risks here. The Court could hold, in a short shadow docket order, that the United States lack an equitable cause of action. There is precedent for such an order. In 2019, the Supreme Court granted a stay in Trump v. Sierra Club. The majority observed that the Plaintiffs lacked a cause of action:

Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary's compliance with Section 8005.

(Seth Barrett Tillman and I wrote about the order here.).

The Supreme Court could turn away DOJ's application in a single sentence. Ironically, that holding would actually help the Justice Department in the long run. Usually, DOJ argues in favor of a narrow scope of equitable jurisdiction. But here, the Biden Administration has reversed that position.

Comments

[dwb68]

this is a zero risk appeal. If they win they block the law. If they lose they can blame the extreme Supreme Court.

[Gandydancer]

And the upside to that is...? For motivated voter turnout there should be an actual decision before the next major election. I guess it could be good for fund raising, as is the whoe pretense that SB8 is meaningful.

Blackman: "There are risks here. The Court could hold, in a short shadow docket order, that the United States lack an equitable cause of action."

[Orbital Mechanic]

If the result is that SB8 is not blocked, then the best to be hoped for is that the benefit of the doubt regarding the extremism of the right-wing court will have all doubt removed.

But Susan Collins assured us there was no way that justice i-like-beer would fail to defend the right to abortion.

[Gandydancer]

And Roberts promised to just call balls and strikes.

Poor you, so surprised by reality.

[Sidney r finkel]

Let me see if I understand this correctly.

When a state passes a blatantly Unconstitutional law (which this is as long as Roe and Casey are the law of the land), the federal government has no standing to ask the Court to block that law from going into effect as long as the enforcement procedure in the law is like the procedure in the Texas statute.

Okay, who has standing?

The answer would appear to be no one.

That is only the second most amazing thing in all of this. The first is that conservatives embrace this position, yes, the same conservatives who profess a holier than thou love of the Constitution support a procedure which essentially renders the Constitution no longer in effect, at least in this narrow sense, and of course as more states adopt this strategy, in the larger sense.

[Michael Ejercito]

Abortionists who are sued would have standing, just like the New York Times had standing when sued by Sullivan.

[CDL]

I comment as a keen, though non-US, observer of US law, so doubtless my understanding is partly - perhaps wholly - mistaken. Doubtless, I miss many of the plausibly applicable complexities of federal jurisdiction and procedure. But I'll take the leap and hazard these remarks:

1. "*Equitable* cause of action" strikes me, in its imprecision, to be a potentially misleading description of the cognisable *equity* which must be shown by the party petitioning for the favourable exercise of a competent court's discretion to decree equitable relief. "Cause of action" is, I should have thought, a concept derived from the common-law and the direct correspondence between the writs it had power to order and the curial jurisdiction enlivened by a party's conformity with one of the "forms of action". Bills in Chancery didn't work this way - which is hardly surprising, at least in this respect: it was, and remains, in principle a discretionary jurisdiction whose remedies could be decreed (e.g.) if a petitioner were able to show that the remedy which by right followed on a successful judgment on a CL cause of action were inadequate. In no sense did this require any "cause of action" *in equity*. Equitable remedies are not, mechanically as it were, juristically dependent on establishing an "equitable cause of action". They can be - most often (though not exclusively) are - decreed in respect of legal or statutory causes of action.

2. According to the Court in Trump v Sierra Club, the Gov discharged its onus of persuading the Court that the equities warranted a decree staying the preliminary injunction by showing the plaintiffs in the original action plausibly lacked the requisite "cause of action" founding a right of judicial review. This "cause of action" is not equitable, but legal (statutory or administrative), linked conceptually to the governing criteria for standing to seek JR.

3. It's not clear to me why Trump v Sierra would, in any case, be an apposite precedent. Sierra was a private party. The DOJ intimates it will petition the Court, in the name of the US, to vacate the 5th C stay. Presumably, the proper plaintiff would be the US Attorney-General. In general principle (so it seems to me) an A-G has, by virtue of his or her very office, a right, and sometimes a duty, to uphold or vindicate the public laws (which indisputably include the US Const.). It seems to me - again, I may be ignorant - that the US would have standing at least on this basis, even if it lacks a formal "cause of action". Of course, to satisfy standing isn't to satisfy the equitable criteria which would structure the exercise of the Court's discretion to vacate the stay.

[Michael Ejercito]

Presumably, the proper plaintiff would be the US Attorney-General. In general principle (so it seems to me) an A-G has, by virtue of his or her very office, a right, and sometimes a duty, to uphold or vindicate the public laws (which indisputably include the US Const.). It seems to me – again, I may be ignorant – that the US would have standing at least on this basis, even if it lacks a formal “cause of action”. Of course, to satisfy standing isn’t to satisfy the equitable criteria which would structure the exercise of the Court’s discretion to vacate the stay.

by that logic, the U.S. would have had standing to sue to overturn libel or slander laws, or intentional infliction of emotional distress laws, and a federal court would be in its rights to enjoin state courts from hearing libel, slander, or intentional infliction of emotional distress cases.

[CDL]

I don't think your conclusion follows as a matter of logic, since the classes of laws you cite aren't on subject-matters, or enacted for purposes, within the exclusive competence of the legislative powers of the US, nor does the US Const. supervene to prohibit such laws per se.

That said, my point re the standing of an A-G to intervene in cases involving the Constitution or its interpretation, on an ex officio basis (given a right or duty, as the case may be, to enforce, protect, or otherwise vindicate the public interest in the public law), was only expressed in point of "general principle". You're surely right that such a general principle, if applied without relevant & prudent qualification, would be greatly open to abuse. The only reason I raised it was tentatively to question the proposition that the Sierra Club case - involving as it did a private party - directly controlled the question of whether the US might have standing to intervene in the matter of the SB8 preliminary injunction.

[ReaderY]

I am on the whole inclined to agree the US likely has standing here.

But I am inclined to disagree that this is such an unusual law.

Environmental laws, among other laws, have been interpreted with fairly liberal standing requirements that often give advocacy groups like the Sierra Club standing to file lawsuits not all that different from the ones this statute contemplates. The Supreme Court upheld a very broad conception of organizational standing in a Fair Housing Act case by which an advocacy group gets standing if it feels forced to devote resources from other projects to the issue, in Havens Realty v. Coleman.

And the Texas State Constitution imposes a standing requirement that limits plaintiffs to only those who have an actual injury with a nexus similar to what federal standing requirements impose.

What the Texas legislature did here isn’t all that different from what Congress has done many times. Congress has passed multiple statutes in areas like environmental protection and civil rights that confer standing to anyone to the limits of Article III standing, with numerous cases involving advocacy group standing based on these statutes reaching the Supreme Court and testing the limits, I don’t see the sort of broad standing created by these statutes as different from what Congress has done multiple times when it has wanted to create citizen attorneys general. And it has intentionally created citizen attorneys general as an enforcement mechanism many times on many issues.

Finally, many tort and other civil laws that have been found unconstitutional over the years don’t permit government to sue and can only be enforced privately. For example, a great deal of gender specific family law (husband’s duty to support wife financially, custody preference for women, only wife can get alimony, gender-specific “heart balm” torts etc. etc.) could only be applied in a divorce or similar intrafamilial case and hence could never be applied by government. Does this make the existence of civil law that only applies to private parties (such as divorce law, libel and other tort law, a great deal else) inherently unconstitutional because no state actor can be sued by people who disagree with the law?

[Gandydancer]

And the Texas State Constitution imposes a standing requirement that limits plaintiffs to only those who have an actual injury with a nexus similar to what federal standing requirements impose.

Not following you. This would appear to invalidate SB8. What am I missing?

I've also seen a similar claim that SCoTX limits standing to TX citizens, grounds for immediate dismissal of the ARK & IL plaintiff's suits, but I haven't seen any evidence for that either.

[Gandydancer]

Are statutory damages automatically considered "actual" damages per the TX Constitution?

[not guilty]

I have not researched the question in detail, but what I have read indicates that Texas follows standing rules comparable to federal standards, based on the separation of powers and open courts provisions of the Texas Constitution. That is one of the issues in Planned Parenthood´s suit against Texas Right to Life, in which the state court in Travis County has issued a preliminary injunction applicable to the parties before it.

[CDL]

1. The difference lies, I should have thought, in the fact that, while statutes have conferred standing to sue, in respect of certain public laws, on private parties (thus obviating the old procedure whereby a private claimant would need the A-G's fiat to commence a relator action), the TX SB8 in addition expressly excludes enforcement of a public law by any of the State's executive officers.

2. The analogy you raise between TX SB8's exclusivity and private law, or bodies of law, is, might I suggest, imperfect: the State has no cognisable State interest in prosecuting on behalf of a private party a private cause of action.

[CDL]

"And the Texas State Constitution imposes a standing requirement that limits plaintiffs to only those who have an actual injury with a nexus similar to what federal standing requirements impose."

Does this State Constitutional requirement apply solely to standing in respect of Constitutional claims, or all claims whatsoever?

If only the former, the Con. requirements can't, I'd assume, invalidate SB8's conferral of standing to sue on any private party, notwithstanding that party's lack of any "nexus" as ordinarily understood.

[damikesc]

How is this different than how, say, the ADA is enforced?

[John F. Carr]

The DOJ can enforce the ADA, and it's a federal law so the jurisdictional issues are different.

[CDL]

Precisely.

[Gandydancer]

When a state passes a blatantly Unconstitutional law (which this is as long as Roe and Casey are the law of the land)...

As I keep pointing out the "blatancy" in this claim is bogus. SB8 was written so as to have almost no legal effect UNLESS Roe and Casey stop the law of the land in a way much more radical than is likely.

[Gandydancer]

* stop being

[not guilty]

Again, you lie

[not guilty]

Every court that has reached the merits of a claim that a so-called ¨fetal heartbeat¨ law is unconstitutional has ruled in favor of the abortion providers. How much more evidence of ¨blatancy¨ do you require?

SB8 subjects abortion providers to damages suits -- possibly multiple actions in multiple venues -- for conduct that is plainly constitutionally protected. Even if the provider prevails at or before trial based upon Roe v.Wade and Planned Parenthood v. Casey, that favorable result is no bar to future litigation. How does that comport with Due Process?

The intended and actual effect of enactment of SB8 is to chill the exercise of federal constitutional rights. Let´s hope that SCOTUS sees through the procedural gamesmanship and applies its own clear precedents in evaluating the merits.

[Michael Ejercito]

SB8 subjects abortion providers to damages suits — possibly multiple actions in multiple venues — for conduct that is plainly constitutionally protected. Even if the provider prevails at or before trial based upon Roe v.Wade and Planned Parenthood v. Casey, that favorable result is no bar to future litigation. How does that comport with Due Process?

Just like laws against libel, slander, and intentional infliction of emotional distress can subject news media and churches to damages suits, and the courts hearing those suits, and appeals arising from the suits, can rule on the constitutionality of such laws. See New York Times Co. v. Sullivan , 376 U.S. 254 (1964), Snyder v. Phelps, 562 U.S. 443 (2011)

This does not mean the United States has standing to sue to pre-emptively block libel, slander, or intentional infliction of emotional distress suits that might run afoul of Times or Snyder.

[Alpheus W Drinkwater]

Perhaps that is because libel, slander, and intentional infliction of emotional distress are not constitutionally protected behaviors. Whereas this law clearly seeks to punish something that is constitutionally protected, at least while Roe and Casey are are ruling precedent.

[CDL]

The analogy doesn't work: State statutes, or common-laws, on defamation, don't as such in point of State legislative *power* contravene any Constitutional prohibition, nor in point of operative inconsistency do they, as such, generally breach any supervening Constitutional right.

It may be worthy of remark that the "appeal" (=petition for a writ of certiorari; namely, an application for "judicial review", *not* properly an "appeal") which the US has intimated it will lodge, is to vacate in equity a stay of a preliminary injunction granted by a Federal District Court. The petition is not primarily to *determine* the relative rights pertaining to the parties to a case or controversy. Much less is it to interfere in a State court's exercise of jurisdiction.

[IPLawyer]

Regardless, I look forward to making fun of you in the comments section of the 40-some-odd articles you will write about it next week. Have a great weekend!

[Gandydancer]

TMI about your masturbatory fantasies.

[Rev. Arthur L. Kirkland]

" There is a risk taking this case to the shadow docket. "

The biggest risk threatens the existence of a <a href="https://www.youtube.com/watch?v=SNdcFPjGsm8"<nine-justice Supreme Court.

[Gandydancer]

It's an improvement when the worthlessness of your links is made plain.

[The Turtle Dove]

I haven't been following this, but since the case at the district level hasn't been docketed at 5CA, I can't see S.Ct.U.S. reaching through to the last reasoned decision below to address the underlying equitable c/a, since the circuit docket currently consists of an administrative stay of the preliminary injunction. Interlocutory appeals only offer as much ground for appeal as the reviewing court can catch hold of.

The only justification for this secessionist tomfoolery is to establish the extremes to which elected legislatures will go when frustrated in their aims by the courts. This isn't how one should make the pro-life cause in American courts.

Mr. D.

[John F. Carr]

The administration needs one more vote. Which of the majority in _Whole Woman's Health_ does the DoJ plan to flip, and how?

[CDL]

I should think this were indeed the better view on this point: viz., that State libel laws etc. don't directly raise any US Con. issue in respect of which the US would have a cognisable "interest", inherently, in protecting or enforcing. Whether there be any particular Fed statutory grants of power for the US to intervene in cases or controversies implicating such private law domains is, of course, an entirely separate question.