The Volokh Conspiracy

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Debs in the Heart of Texas

In 1912, Eugene Debs received nearly 25,000 presidential votes in Texas. Can Debs get 5 votes in U.S. v. Texas?


In the challenge to S.B. 8, the United States has placed a lot of weight on In re Debs (1895). So much so that they barely make arguments based on Grupo Mexicano and Armstrong. The Solicitor General has likely determined that the best way to win this case is to rely on a very unique aspect of federal power that would not disrupt other longstanding conventions concerning equitable jurisdiction. This century-old precedent warrants a careful look.

With perfect timing, Aditya Bamzai and Sam Bray posted a new paper to SSRN, titled Debs and the Federal Equity Power. (Sam blogged about it last night). Here, the authors write that Debs "has a good claim to be the most controversial equity decision ever reached by the Supreme Court." Now, the article is not about United States v. Texas, but it does address one of the threshold issues in the case.

Part III.B (pp. 32-38) considers "the possible limiting principles available for nonstatutory equitable relief"–the exact sort of relief the Solicitor General seeks in U.S. v. Texas. Bamzai and Bray sketch three possible limiting principles.

First, the sole limit would be that if "no adequate remedy" is available at law, then "a federal court has the power to remedy that defect, at least when a constitutional right is at stake." To paraphrase Marbury, "[w]herever there is a constitutional right, we might say, there is a remedy." (Of course, William Marbury never got a remedy because the Court lacked jurisdiction.) The authors write that with first approach, "there may not really be a limit." Indeed, this capacious view mirrors the approach advanced by the Grupo Mexicano dissent.

Second, in the absence of a statute, "a plaintiff would have to show some other equitable cause of action." The authors reject this theory, and argue there was no "cause of action" in Debs. (I have written about this issue before, and will respond to this aspect of Bamzai and Bray's analysis in another writing).

Third, equity may be available "to protect a proprietary interest (or in some formulations, a personal or proprietary interest)." The authors derived this principle from Debs, as well as from Ex Parte Young. Seth Barrett Tillman and I have described the basis for equitable jurisdiction in Young in very similar terms:

In Young, the government was regulating the railroad company. Such disputes about contested rights and duties involving property (e.g., interpleader) also lie at the very core of historical equitable jurisdiction. Specifically, the Young plaintiffs sought to prevent future state action regulating their own property. To accomplish this goal, they invoked the court's equitable jurisdiction to sue their company, its directors, and state officers before those state officers could regulate the plaintiffs' own property through an imminent coercive lawsuit.

Of these three approaches, Bamzai and Bray favor the third, property-centric approach.

On p. 35, the authors turn to U.S. v. Texas.

More specifically, the traditional limiting principles are especially apt in a context, such as United States v. Texas, where the United States is bringing a nonstatutory claim for equitable relief. This is so for two reasons. First, precisely because the claim is nonstatutory, it does not have the narrowing and focusing that comes from the statute. This is the wisdom of the traditional property connection with the statutory exception. Second, if the basis for the suit by the United States is a reach back almost 130 years for a litigation superpower, under In re Debs, it is more than appropriate for the historic limits on that superpower to be brought along as well. Retrieve the power, retrieve the limits.

And what are those limits that must be retrieved?

In a case where there is no statutory basis for injunctive relief, the plaintiff should be required to connect her claim to some proprietary interest (or, in some formulations, personal or proprietary interest). Although there are ways in which the sovereign has broader power in equity, this is not one of them.

And how do those limits apply to U.S. v. Texas?

Thus Debs should be read as authorizing suits by the United States to protect the rights of U.S. citizens when that suit can be connected to some kind of proprietary interest—whether a proprietary interest of the sovereign itself, or the proprietary interests of the public that are protected in the abatement of a public nuisance.

In Texas, the definition of a public nuisance can be found in Title 5 of the Health and Safety Code, Chapter 343. Most of the public nuisances concern unsafe premises and garbage.

How does Bamzai and Bray's analysis apply to the Solicitor General's case? The answer turns on what exactly are the "proprietary interests" of the United States. The Solicitor General argues that "the United States has a sovereign interest in preventing States from nullifying this Court's decisions by thwarting judicial review." (p. 16). I have long argued–and I think Bamzai and Bray would agree–that this sort of interest is far removed from the types of suits long permitted at equity. There should be at least some connection to property. Bamzai and Bray write:

Equity is not static, and yet the Court has also rejected an approach to federal equity powers that is completely presentist. The historic landmarks of the equity tradition, including cases like Gee and its antecedents, are relevant today precisely because of the basis of federal equity power. So the mere fact that the property connection has faded in recent cases, does not decide its applicability, at least as long as the Court is committed to the approach of Grupo Mexicano.

Under Grupo Mexicano, this sort of equitable case was not known in the High Court of Chancery.

However, the Solicitor General presents an alternate argument: "The United States also has authority to sue because S.B. 8 interferes with the activities of the federal government in violation of principles of preemption and intergovernmental immunity." (p. 27-28). For example, the Bureau of Prisons has the responsibility to arrange for abortions if an inmate requests one. This sort of interest seems much closer to the type of "proprietary" property interest in Debs that Bamzai and Bray discuss.

Still, even if DOJ has an interest to vindicate these interests in equity, the court could not "strike down" the entirety of S.B. 8. At most, the court could issue an injunction stating that S.B. 8 could not be enforced in a way that would interfere with these federal proprietary interests. For example, if a Texas clinic performs a post-six-week abortion for a federal inmate, that clinic could not be sued. An injunction could be crafted along these lines to vindicate the interests of the United States, while leaving the remainder of the law in effect. S.B. 8's intricate severability clause supports this result.

Ultimately, the Court could issue a narrow ruling for DOJ with respect to its proprietary interests, that would still maintain the remaining status quo for S.B. 8 for the foreseeable future.