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.

Comments

[QuantumBoxCat]

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

Huh? You're saying the English sovereign (the King) never sought an injunction in the Court of Chancery against a sovereign state of England? Since England did not have a federal government, like the U S. adopted, I don't see why such a case would have ever arisen. The logic would also preclude equity from ever intervening in a case that implicated principles of federalism and dual-sovereigns. I find it hard to believe that the U.S incorporated judicial systems that could not be uniquely adapted to it's federal system of government.

[Doug Heffernan]

“if a Texas clinic performs a post-six-week abortion for a federal inmate, that clinic could not be sued.”
“This sort of interest seems much closer to the type of "proprietary" property interest in Debs that Bamzai and Bray discuss.“

Federal inmates are federal "property". Such property is the extent of the interests of the United States that warrant any vindication.

You won't hear this sort of gas leaking out of anyone other than the blackman kid.

[Kenan E]

I see no barrier due to the "proprietary interest" threshold, if that is indeed the accepted element required for equitable relief.
I have argued in other locations that S.B. 8 is a "taking" under the 5th Amendment (as applied to the states through the 14th) due to the $10k reward to the agents of the state.

However, I find it unacceptable that equity should be limited to only a proprietary interest. Violation of life, liberty and property interests are all valid basis for requesting equitable relief.

[Kenan E]

The argument that the government can't request equitable relief for the "proprietary" interests of the citizens of the states because those proprietary interests are not of the federal government seems absurd on several grounds, especially given that state law is using private citizens as its agents to enforce the law.

Since the state is using citizens as its agents, the federal government should be able to act as the agent of those citizens that are harmed or are likely to be harmed by the law, even without an actual suit under S.B. 8 against those citizens.

Equitable relief seems highly appropriate in this case when no relief can be found under the court of law.

[Cal Cetín]

I got the harm, I got the remedy
I got the pulsating, equitable remedy

(repeat 1,000 times)

[Kenan E]

I think the strongest argument against preemptive suits in response to S.B. 8 is the idea that the United States is suing pretty much everyone, since anyone can file a suit under S.B. 8.

It has been argued that Judges and Clerks are not appropriate defendants under U.S. v. Texas. It has also been argued that the employees and officials of Texas do not enforce the law.

While those arguments are strong, they are not persuasive. This is because the State is defending the law in Court, and because a successful plaintiff under S.B. will eventually need to rely on the State to extract court costs and the $10k reward from the defendant. At a minimum, any arm of the State that assist the enforcement of obtaining court costs and the (at least) $10k bounty can be enjoined from assisting plaintiffs in obtaining their "reward."

While this doesn't stop a plaintiff from suing under S.B. 8, plaintiffs are less likely to file suit if they know that they will not be able to obtain any monetary award from the suit.

S.B. 8 also requires that an unsuccessful defendant under the law is enjoined from repeating the act that resulted in the suit. Only the State can enforce such a sentence. Civil plaintiffs cannot do that. Hence, the State can be enjoined from enforcing such a penalty.

All of these reliefs are well suited as equitable remedies even under traditional criteria.

[WPHDM]

Re: "Only the State can enforce such a sentence. Civil plaintiffs cannot do that."

That can't be right. First, the characterization of a judgment in a successful SB8 suit as a "sentence" is incorrect. These are civil suits, so no sentences. And appeals, if any, would go to the intermediate court of appeal and then to the SCOTX, not the Texas Court of Criminal Appeals (CCA). Second, the enforcement of a permanent injunction entered by way of final judgment in a civil case would still be a civil matter, even if the penalties could in theory involve jail (criminal contempt), such as they were in the Shelly Luther hair salon case for violating a COVID-shutdown TRO in a civil enforcement case brought by the City of Dallas. In re Luther, No. 20-0363 (Tex. Apr. 9, 2021) (granting Luther's petition for habeas corpus on conclusion that TRO was void).
https://www.txcourts.gov/supreme/orders-opinions/2021/april/april-9-2021/

Government actors cannot enforce civil judgments unless the State (AG) or some other governmental entity is a party to the case, such as for example in DTPA suits brought by the Consumer Protection Division of the OAG, or a suit by a county to shut down a nuisance to provide another example.

So, any contempt proceeding involving SB8 would presumably have to be brought by the *private* judgment creditor. If the motivation for the SB8 action was solely the $10,000 reward ("statutory penalty"), they may not be interested in assuring that the injunction is complied with by the abortion provider. If the judgment creditor is a pro-life advocate, on the other hand, it may be different. Regardless, contempt proceedings would have to be initiated by the successful plaintiff/judgment creditor. The court that entered the judgment for a civil SB8 violation wouldn't commence such enforcement sua sponte.

But any discussion of a judgment in an SB8 suit and its enforcement presumes that it comes to that. Filing an SB8 suit is a necessary condition, but not a sufficient one. And the SB8 defendant would have plenty of opportunity to raise the constitutional arguments defensively that many are falsely suggesting must be raised in a pre-enforcement suit in federal court (not to mention that 14 pre-enforcement suits are pending in state district courts in Austin right now).

[Kenan E]

I used the word "sentence" on purpose because this state law should be direct state action and not a civil action with deputized civilians.

However, by "[o]nly the State can enforce such a sentence. Civil plaintiffs cannot do that" I meant that civil plaintiffs cannot physically force a defendant not to do anything. A losing defendant under S.B. is enjoined from repeating the action. You may be right and some plaintiffs may not care. Fine. But if they do, plaintiffs will need the court system and law enforcement divisions of the State to prevent a plaintiff from acting under the civil ruling.

"contempt proceedings would have to be initiated by the successful plaintiff/judgment creditor"

Yes... that is what I meant. Any use of the Texas court system or administrative offices to enforce any component of a civil judgement can (should) be enjoin-able.

I don't see how a plaintiff is going to get any money from a defendant who doesn't want to pay without involving law enforcement in some manner. The State is eventually going to have to be involved if plaintiffs attempt to get their money. SB 8 defendants should simply not pay. At some point a State or federal official is going to be involved, and that person can be prevented from acting by the Court. So long as Roe v. Wade is the law of the land, I don't think any plaintiff going to get a dime from an SB 8 defendant.

[WPHDM]

Re: "I don't see how a plaintiff is going to get any money."

Okay, that would an argument relevant to the spector-invocation regarding massive financial liability of SB8 violators, but it's not the central issue.

As to the merits, judgment enforcement mechanisms include filing an abstract of judgment in the county real estate records (thereby creating a lien on the judgment defendant's property). The county clerk doesn't get to ascertain the genesis of the obligation in the recording process, and no service of process is involved to collect (but the lien would have to be satisfied or released before the property to which it attaches can be transferred). Another collection mechanism is a post-judgment garnishment action against the judgment debtor's creditor(s) (such as - typically - a bank). That's a separate lawsuit in which the debtor is not even a party, though they must be given notice). Another vehicle that may be available depending on jurisdictional factors would be domestication of a foreign judgment, which is a routine matter which does not easily lend itself to an attack on the propriety and validity of the judgment granted by the court that entered it.

Bottom line: Enforcement of a judgment arising from an SB8 suit (if any) should be no different from other judgments, and even if execution by constable/sheriff on non-exempt property of the debtor could be restrained by a federal court, it wouldn't eliminate other judgment enforcement mechanisms. Moreover, the judgment need not facially contain any indication as to what type of lawsuit or cause of action it resulted from.

[Kenan E]

Each of the scenarios you suggest seems to imply some action by county officials is necessary in order for final settlement to be completed. Each of those scenarios allows the defendant to ask for equitable relief. But I will not pretend to be an expert on matters involving civil judgements. I will yield to your apparent knowledge on these matters.

If you are telling me that no state and/or local official needs to be involved in getting a settlement from a defendant, then this seems to me a stronger argument for enjoining judges from issuing an SB 8 judgement against a defendant.

I listened to oral arguments today and while there was a legitimate argument that judges are unbiased adjudicators and should not be enjoined from hearing arguments, I don't see any reason why judges can't be enjoyed from issuing a ruling on the merits when it comes to SB 8, or issuing a ruling, but not providing an "abstract of judgement" that can be used by the plaintiff to obtain the settlement.

Otherwise, the State is simply putting its head in the sand and pretending that it doesn't have anything to do with these plaintiffs that they unleashed upon society. The machinery of the justice system IS the State, and the State is enabling plaintiffs to violate the constitutional rights of US Citizens.

[WPHDM]

Can Texas judges be restrained?

Obviously, to the point of being trite, any and every lawsuit involves the state because the state (speaking in the abstract, not referring to the executive branch of the prosecutor such as in State v. Joe Blow or State v. Harris County) operates the justice system aka the third branch.

So, obviously again, if you don't want state judges to rule a certain way, you can fire them all or tie their hands to their benches (or arm rests). There you have it: the wrong these untrustworthy state jurists might be committing if left unrestrained is redressable. The supreme judicial authorities could in theory order it, and presumably send federal marshals to subdue any rogue judges that need physical handcuffs rather than a firm directive.

Come to think of it ... if Judge Pitman in the W.D. Tex. gets command & control over the entire college of state trial judges and gets to tell them what they may and may not do in their official capacity, why do we need 80 state appellate judges on 14 intermediated courts of appeals, not to mention 9 state court supremes. All redundant if a single USDC judge in Austin (also seat of the SCOTX) now get preclearance powers over state trial judges who might not rule as desidered by constitutional rights claimants. Especially suspect of course would be those judges that belong the opposition party, which is a matter of public record since they all stand as candidates in partisan races.

NONGOVERNMENTAL ALTERNATIVES

The alternatives are (1) private systems of dispute resolution, such as arbitration (though still subject to arbitration laws such as the FAA and TGAA, the Texas counterpart, and still dependent on the state court system for enforcement of arb awards if not paid voluntarily) and (2) vigilante "justice", which is essentially "self help" outside of the law enforcement and justice system.

To call SB8 plaintiff vigilantes, however, is oxymoronic because the only authorized enforcement action is in court through litigation, i.e. within the law (and under the supervision and discipline imposed by the judge presiding over the case) rather than oustside of it.

Notably: No out-of-court violence involved. No seizure and delivery of bodies dead or alive. Excepting the preborn humans, of course, who would have been dispatched by the abortion docs and their helpers, rather than by the SB8 plaintiffs, the mislabeled "bounty hunters."

[Kenan E]

@WPHDM

I've since found out that you are an SB 8 plaintiff.

You clearly have a biased view on this subject. So, I decided to look up the mechanisms in Texas for enforcing a civil judgement. ALL of them require an initial court action: Abstract of Judgement, Writ of Execution, Writ of Garnishment. You can't get your hands on money or property without one of those.

Even if judges aren't prevented from hearing S.B cases, and clerks aren't required not to accept S.B 8 cases, the Supreme Court could enjoin the Texas court system from issuing any of the above (Abstract of Judgement, Writ of Execution, Writ of Garnishment), unless the case is consistent with Casey and Roe v. Wade.

That gets plaintiffs their day in court, but doesn't allow plaintiffs to get their bounty or even their expenses paid, if the abortion occurred before viability.

Such a ruling, which is very limited, would likely prevent plaintiffs like you from filing suit. Some may do it anyway, but most would not.

I should say that I also read your friend of the court filing that never got filed. There are many questionable claims in that filing. It wouldn't have made any dent in the justices opinions (either way).