SB8

Limiting Principles and SB8

How far do the plaintiffs' arguments go?

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As noted in my prior post, the plaintiffs in the SB8 cases, both the clinics and the United States, seem to recognize that the remedies they're asking for are quite extraordinary. Letting private parties sue judges and court clerks over an unconstitutional law, for example, would be what Chief Justice Roberts described in his VOPA v. Stewart dissent as "a substantial and novel expansion of what we have also called 'a narrow exception' to a State's sovereign immunity." (To quote a later passage of his dissent: "This sort of suit was not only anomalous and unheard of at the time of the founding; it was anomalous and unheard of yesterday.")

The plaintiffs' defense is that SB8 is extraordinary too. Yet two "extraordinary"'s don't make a right: presumably the unusual features of SB8 wouldn't justify just any relief, such as ordering Texas legislators to vote for the law's repeal, or ordering Texas citizens to vote for different legislators.

In any case, however hard it is to match one "extraordinary" with another, there's a deeper problem here. Whether private parties can sue court clerks, or whether the U.S. can sue a state to enjoin a law its executive doesn't enforce, are yes-or-no questions: either they can or they can't. But the degree of chilling effect a statute imposes is just that, a question of degree. The plaintiffs need a limiting principle to explain how much chilling effect is too much, and when their new forms of relief start to kick in.

Of course, judicial opinions don't really need limiting principles; a reversal in either case could be written as good-for-this-train-only. But it wouldn't stay good-for-this-train-only: private parties and future administrations have too much interest in using the amazing injunctive powers the Court would have created for them. So when, exactly, will a state law justify these new kinds of suits?

Here are some possible options:

Whenever a state enacts an arguably unconstitutional law, enforced by private lawsuits. This is commonplace; as Justice Breyer noted, it occurs whenever anyone claims that a rule of tort or property law might violate the Constitution. Think punitive damages under BMW v. Gore, defamation claims under New York Times v. Sullivan, or restrictive covenants under Shelley v. Kraemer—all of which were brought and litigated by private plaintiffs and defendants, with the constitutional issues raised as defenses, and without any injunctions against judges or court clerks. If the law allowed for suing judges or clerks under statutes like these, then we should have seen some of these suits already.

Whenever a state enacts an arguably unconstitutional law, enforced by private lawsuits, with the intent of challenging a judicial precedent. This kind of rule would make test cases unconstitutional. States challenge judicial precedents all the time, usually in ways that allow (under current doctrine) for immediate pre-enforcement review. The plaintiffs' problem isn't what Texas intends, but that it might actually succeed, discouraging the exercise of Roe- and Casey-recognized rights without having to overturn Roe and Casey first. Yet the federal government structures its conduct to avoid judicial review all the time—such as by using enforcement discretion under Heckler v. Chaney rather than implementing a new regulation that might be contested under the APA. As far as I know, the DOJ hasn't suggested that such intent "nullifies" the relevant statutes or the judicial decisions construing them, justifying an injunctive suit against the United States under the APA's waiver of sovereign immunity. So the intent to get out from under judicial precedent doesn't seem to be doing much work on its own.

Whenever a state enacts an arguably unconstitutional law, enforced by private lawsuits, with intent to challenge precedent, without a need to show injury. Citizen-suit provisions are commonplace too. Suppose a state adopted a false-advertising law, enforceable by anyone who saw an offending advertisement, that was contrary to the Court's current commercial-speech doctrines (cf. Nike v. Kasky). These kinds of laws show up all the time, but somehow we haven't yet started suing defendant classes of court clerks. Also, this kind of limit provides an easy roadmap to states to evade the restriction; they can just limit the universe of plaintiffs to a large group of people who do have some connection to the case. (Say, by giving an SB8-like right of action to anyone related to the unborn child within five degrees of consanguinity, or to any couples on a state-run adoption waiting list, or by declaring abortion a private nuisance that may be abated by anyone within 1000 feet of a clinic.)

Whenever a state enacts an arguably unconstitutional law, enforced by private lawsuits, with intent to challenge precedent, without a need to show injury, and with very heavy penalties. Texas didn't need to limit itself to a minimum of $10,000 in statutory damages; it could have picked $1 million instead. But here, the chilling effect ultimately comes from the fact that no one knows whether the Court will uphold Roe and Casey. If a state tried to proscribe conduct that's obviously protected by the Constitution, such as by banning handguns or Torah scrolls, then the plaintiffs would all lose; indeed, they'd be forced to pay attorney's fees under Rule 11 or its state-law equivalents.

The chilling effect doesn't come from being sued. Anybody can be sued, at any time, for any reason or for no reason at all. Some weirdos could sue you right now for $1 million for possessing a Torah scroll. They wouldn't even need a state law pretending to tell them that they can. And they're not even subject to any federal injunction that would have them found in contempt and thrown in jail. The reason why you don't lose sleep over this is that their suit would be dismissed as frivolous on day one and they'd be forced to pay your attorney's fees. The worry with SB8, by contrast, is that the lawsuits might actually proceed.

Which brings us to another possibility: Whenever a state does all of the above, and adds barriers to defensive litigation too. Texas's argument is that clinics should raise their constitutional arguments defensively, once sued. Yet SB8 makes the job of defending these lawsuits much harder. It doesn't just create a cause of action; it lets plaintiffs lay venue anywhere in the vast state of Texas, shields them from preclusion from losses against other defendants, protects them from having to pay attorney's fees even when their arguments are frivolous, and purportedly limits the applicability of potential constitutional defenses.

Some of these barriers are less worrisome than others. Plenty of actions permit the plaintiff to lay venue in their home district, and there's no constitutional right to non-mutual issue preclusion, binding one party by a prior loss against someone else. But all of it is overkill, and some of it may actually be unconstitutional on its own. For example, if Casey's undue-burden test really came from the Constitution, then no state would have power to suspend or limit its terms. Or if a state generally provides for attorney's fees for the victims of frivolous and harassing litigation, taking that protection away only for the defense of one particular constitutional right might well count as an abridgment of that right, if such a right exists.

Yet here's the key issue: these constitutional arguments, too, can be made in defensive litigation. In a state court suit, it's perfectly possible for a provider defendant to argue that the suit is frivolous, that the lack of attorney's fees is unconstitutional, and that the court should award fees notwithstanding SB8. Or it can argue that the heartbeat rule imposes an undue burden, that the statute takes an unconstitutionally narrow view of such burdens, and that the court should therefore grant a motion to dismiss regardless of what the statute says. If the state court disagrees, the defendant can appeal; and if the state supreme court disagrees, the defendant can seek cert.

So here, too, there's no separate need for brand-new relief against judges or court clerks, so long as the Supreme Court is on the job—unless there were a constitutional right to pre-enforcement review, which there isn't. Or, if Congress perceives such a need, as it perceived a need for § 1983, it can pass a statute under Section Five of the Fourteenth Amendment, which gives the creative pen to Congress, not to the courts.

Section 1983 was a great idea, but no one thinks the courts could have invented it on their own. So why are they able to invent new actions and remedies here? Texas won't make this argument, but SB8 could be a really bad law, one that Congress should really do something about, without a preenforcement suit being legal already. The essence of judicial restraint is recognizing that some problems are up to people other than judges to solve.

In the meantime, the Supreme Court can cabin these problems by reminding people that it's on the job—that the power to create strange causes of action is not the power to destroy while this Court sits. It could say that there are serious questions about the constitutionality of SB8's substance as well as its attorney's fees provisions; that anyone actually sued under SB8 would be able to seek a stay of any money judgment, ultimately appealable to this Court; and that any prevailing defendant under SB8 would be able to make any available argument as to the unconstitutionality of the attorney's fees bar, again ultimately appealable to this Court. That would do as much as one lawfully could to avoid the chilling effect, given the preexisting weaknesses of Roe and Casey.

In other words, the plaintiffs' problem isn't just a line-drawing problem, that we'll have hard cases about when to grant extraordinary relief. The problem is that the specific cases in which extraordinary relief might be merited are also the cases in which such relief might not be necessary—cases that we can deal with using our ordinary tools of defensive litigation. And if we can't deal with them that way, we can seek novel legislative remedies instead. Either way, we can stop our search for a limiting principle; in fact, we shouldn't begin it.

(continued here)

NEXT: Proper Parties and SB8

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  1. I forget who said it. Probably it's been said many times. "There's dicta, and then there's Supreme Court dicta." The case could be resolved with an advisory opinion. Which the court has been doing as long as it's been claiming not to. _Heller_ said the government could ban machine guns despite being presented with a case about handguns.

    1. That’s what Kavanaugh thought with his Eviction Moratorium dicta. Ignored by Biden admin. I’m sure it helped fast-track the subsequent, successful appeal, but it did not carry the “and there’s Supreme Court dicta” weight he assumed it would. I think he (and other justices) will be rightfully leery of overplaying the dicta hand in the wake of Alabama Realtors, unless of course their actual intent is for it to be ignored.

      1. Dicta in a majority opinion is more persuasive than Kavanaugh. And the court wouldn't be writing for Biden or Abbott. It would be writing for lower court judges trying to guess where the abortion line is drawn now and whether the deterrents in the law add up to unconstitutional, and for potential plaintiffs and defendants.

  2. All these problems stem from the notion that you can’t sue a law or a legislature that passed it, you must sue those who enforce the law. The easy solution is to just make it so that you can she the legislature. The 14thA says that states can not “make or enforce” unconstitutional laws.

    1. There is no problem to solve. As things stand no one sued under SB8 can be found liable for any money judgment or injunctive judgement for performing a Casey-protected abortion unless TX courts ignore the text of the law.

      https://legiscan.com/TX/text/SB8/id/2395961

      1. I assume you're referencing sec. 171.209, in which case, you need to examine subsection d, which would limit Casey rather dramatically:

        (d) A defendant may not establish an undue burden under this
        section by:
        (1) 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; or
        (2) arguing or attempting to demonstrate that an award
        of relief against other defendants or other potential defendants
        will impose an undue burden on women seeking an abortion.

        1. He's also ignoring 171.209(a), which says that even if the law does create an undue burden, an abortion provider can't assert that defense unless SCOTUS explicitly forces the state to allow that.

          1. The normal sequence on this would be, somebody sues under SB8, it goes up through the courts, and eventually the Supreme court says "Casey is still in effect, knock it off", or "Yeah, about Casey..."

            The abortion lobby don't want to follow the normal sequence, and want SB8 disposed of as fast as possible, because, while it doesn't actually prevent them from performing abortions, it has that retroactive liability provision should Roe/Casey be overturned.

            It's really the retroactive application of overturning Roe/Casey that is the problematic thing here, NOT the citizen prosecutor aspect. It's the chilling effect of potential liability for conduct the courts are telling you, at the time you engage in it, is constitutionally protected.

            The solution here is actually an expanded application of the ex post facto clause.

            1. Since I see no reason why TX or its designees should be barred from prosecuting/suing anyone for a crime or tort that they have been told by the State of Texas is a crime or tort AFTER SCOTUS has admitted that such prosecutions/suits are not in fact barred by the US Constitution I don't see any "problem". If an abortionist wants to proceed with an act TX tells him is illegal in reliance on a belief that SCOTUS will continue to prevent enforcement of TX law against him he does so at his own risk.

              And SCOTUS precedent agrees with me. In US v Rodgers the controlling precedent in the relevant Circuit (the 5th, I think) was that lying to the FBI was NOT a crime, and yet SCOTUS let the indictment against Rodgers proceed despite the fact that a SCOTUS overturn of that precedent only happened after Rodgers committed the offense.

          2. He's also ignoring 171.209(a), which says that even if the law does create an undue burden, an abortion provider can't assert that defense unless SCOTUS explicitly forces the state to allow that.

            As I would expect from you, that is of course a completely misleading and dishonest claim. Here it is:

            Sec. 171.209. CIVIL LIABILITY: UNDUE BURDEN DEFENSE
            LIMITATIONS. (a) A defendant against whom an action is brought
            under Section 171.208 does not have standing to assert the rights of
            women seeking an abortion as a defense to liability under that
            section unless:
            (1) the United States Supreme Court holds that the
            courts of this state must confer standing on that defendant to
            assert the third-party rights of women seeking an abortion in state
            court as a matter of federal constitutional law; or
            (2) the defendant has standing to assert the rights of
            women seeking an abortion under the tests for third-party standing
            established by the United States Supreme Court.

            So this is just a bar to TX courts creating any novel basis for standing not already recognized by SCOTUS, not a demand that SCOTUS must do anything now to abort prosecution of abortionists, who are already protected.

            1. I'm sorry if reading is tough for you, but (a) that's not what it says, and (b) your missummary of it doesn't help your position anyway. An abortion provider can be sued under this law for providing an abortion that is 100% protected under Casey, simply by dint of the court finding, "You don't have third party standing to assert Casey as a defense." The Supreme Court has not settled that issue.

        2. Of course I am referring to 171.209, but your claim that those two provisions "limit Casey rather dramatically" is nonsense. They merely prevent any TEXAS court from deeming damages in cases of abortion NOT protected by Casey unconstitutional based on speculation about the effect of the law on others whose abortions are NOT barred. Thus penalization of the abortion of a post-viable fetus cannot be ruled unconstitutional by TEXAS courts based on speculation that the award would discourage abortionists from performing pre-viability abortions. That they see the need to explicitly rule out some predictable nonsense merely points to the fact that they know perfectly well the proclivities of some of the pro-abortion denizens on the TX bench.

    2. I wasn't sure I'd ever type this, but I'm with Molly on this one. The 14th amendment explicitly commands state legislatures not to pass unconstitutional laws, with the only logical remedy being that they can be commanded to repeal them. The legislature is wholly to blame here, and should be capable of being subject to suit and forced to undo their malfeasance.

      Don't like it? Amend the 14th amendment.

      And this isn't even an 'arguably unconstitutional' law. It's a facially and explicitly unconstitutional law. (Nor does it seem necessary, to me, for states to be able to create 'direct' challenges to precedent. The court has spoken on what the law says, so the answer to direct challenges is obvious and settled. As a matter of rule of law, states should be forbidden from creating such direct challenges).

      1. The 1st amendment explicitly commands Congress not to enact laws on the topic of establishment of religion. Think if they did, the federal courts would command them to repeal it?

        No, they'd just say, "A law enacted in violation of the Constitution is in reality no law."

        Why would the 14th not be understood in the same manner? Because they're the federal courts, and the states get no respect from them?

        1. Well, if they can truly declare it 'no law', that's the same as declaring it repealed.

          I thought the whole idea behind 'you have to enjoin enforcement' is that courts don't actually delete laws.

          1. No, Texas' pre-'73 laws against abortion except to save the life of the mother are NOT repealed (read the preamble to SB8 -- link to text above). Enfiorcement has been suspended against Casey-protected abortions, but if the precedent changes there is no need to re-enact them.

            And, no, SB8 is NOT a "a facially and explicitly unconstitutional law." It facially and explicitly conforms itself to Casey as long as Casey remains SCOTUS-approved law.

            1. I think that was my point. Generally SCOTUS enjoins enforcement, it can't erase laws.

              However, the 14th amendment specifically bans legislatures from passing laws which abridge constitutional rights. Texas' pre-'73 law predates Roe, it wasn't known to be abridging a right at the time it was passed. But post-Roe, passing an abortion restriction which doesn't abide by the limits of Roe (and post-Casey, the limits of Casey). And when the legislature takes great pains to avoid state enforcement, the only remedy is to command the legislature to repeal it, so the legislature is the proper target of the suit, and the 14th amendment empowers SCOTUS to order them to do so.

              And no, SB8 is facially unconstitutional. The very idea that you can pass laws which target constitutionally protected rights but have 'no effect' until federal law changes is farcical. But aside from that: 1. post hoc penalties for engaging in conduct that was constitutionally protected at the time it was done is unambiguously an undue burden. 2. Explicitly permits suits without any standing by the plaintiff, which violates a constitutional requirement for both federal and (as i understand it) Texas courts.

              I'm not sure its a constitutional problem, but the prohibition on assigning defense's attorneys' fees to a losing plaintiff is certainly in contravention of normal court rules. But its one-sided nature might raise constitutional issues.

  3. It ooccues to me that a lot of the wailing and gnashing of teeth is that the profession of law is aghast that the institution of law (courts and justice departments) will lose their monopoly on capricious and arbitrary prosecution.

    1. That’s an odd take, given that the SB8 claim is still brought in a court of law, decided by a judge, and with attorney fee burden shifting representing a good bulk of the chilling effect.

      1. Wrong.

        Again, as things stand no one sued under SB8 can be found liable for attoerneys' fees for performing a Casey-protected abortion unless TX courts ignore the text of the law.

        If. on the other hand, Casey were overturned as regards any particular abortion, the $10k minimum would kick in and presumably the pre-'73 criminal laws (still on the books per SB8's preamble) could also be applied (subject to the applicable statute of limitations). Plaintiff's attorney's fees would then be the least of the abortionists' worries.

        1. Again, as things stand no one sued under SB8 can be found liable for attoerneys' fees for performing a Casey-protected abortion unless TX courts ignore the text of the law.

          False.

          If. on the other hand, Casey were overturned as regards any particular abortion, the $10k minimum would kick in and presumably the pre-'73 criminal laws (still on the books per SB8's preamble) could also be applied (subject to the applicable statute of limitations).

          GandyDancer still doesn't understand the concept of due process.

          1. What ought to be an embarrassing demolition of one of your more specific but typically bogus claims is only a few posts upthread, but you are of course incapable of embarrassment.

            On the other hand, -I've- linked to the text of the law. Anyone curious about which of us is right need merely read it.

      2. The courts seem to have pretty good working understanding with prosecutors and law enforcement. Now they are going to have to deal with a LOT more politically / agenda driven not by a few Kim Foxs or Ruby Giulianis. You cant let rabble in the courthouse.

        1. Or ACLU / IJ / Green groups. Like 20k “new” orgs, not 20.

  4. For folks unmindful (note that I do not say, "unfamiliar") with first principles of American constitutionalism, there ought to be an easier answer than stuff about, "limiting principles." Whatever is happening in Texas, Federal officials have sworn oaths to uphold the Constitution. That includes the prosecutors at the Justice Department, and the Justices at the Supreme Court. Those oaths put those officials under a duty to defend federally protected rights.

    Whether S.B. 8 attacks a federally protected right is a legitimate subject for court consideration. But if that question be answered in the affirmative, there is no legitimate basis to pretend there is any legal limiting principle which can somehow assist denial of a right by a state.

    While Roe stands as a recognized right, the Justice Department ought to sue Texas on grounds that Texas is powerless to do anything except guard and cherish a right which must be recognized as a sovereign decree. Let an injunctive remedy be as broad as necessary, barring any action by anyone who purports to act under color of S.B. 8 to deny the privacy right protected under Roe.

    Sovereignty is a power exercised at pleasure. There can be no limiting principle which applies to it.

    1. No federal official or agency exercuses socereignty in full.

    2. Since SB8 protects from judgement any abortionist who performs a Casey-compliant abortion it attacks no federally protected right, so your observation is moot.

    3. "Limiting principles" are super-important, and the legal system can't function without them. (In contrast, the legal system can function just fine without any notion of "sovereignty", especially since in reality whoever has the guns is sovereign anyway.)

      The problem with OP's position is that it's really easy to come up with limiting principles here- the biggest one being the purpose of the statute to evade judicial review.

      1. The problem with OP's position is that it's really easy to come up with limiting principles here- the biggest one being the purpose of the statute to evade judicial review.

        Well, yes, but is that just a Potter Stewart test?

      2. How does SB 8 evade judicial review when the only way to actually obtain a monetary judgment against an abortionist is to sue in court, a court which will...judicially review S.B. 8?

        1. You're casting pearls before swine.

          Wait a few minutes and they will be repeating their nonsense just as if you hadn't demolished it.

        2. SB8 evades judicial review because the statute is designed to, and actually does, chill abortions from being performed, and you can't get pre-enforcement review.

          1. You can not get pre-enforcement review from libel laws.

  5. "In the meantime, the Supreme Court can cabin these problems by reminding people that it's on the job"

    I see an obvious problem here: That requires the Court to be on the job. They're not really that fond of being on the job.

    1. If ACB can pretend that they're not hacks I don't see why they can't pretend to be on the job with equal conviction.

  6. Anyway, what's wrong with, "enforced by private lawsuits, with intent to challenge precedent, without a need to show injury."?

    That appears to me to be the real issue here: Allowing a lawsuit without injury.

    1. Nope. See the header in Sach's article: Whenever a state enacts an arguably unconstitutional law, enforced by private lawsuits, with intent to challenge precedent, without a need to show injury. He continues, "Citizen-suit provisions are commonplace... These kinds of laws show up all the time..."

      1. No, I know there are cases where suits are allowed to be filed without injury. Isn't that the real problem? That they let a violation of an important principle go by because they thought the cause was good?

        That principle being, "No remedy without a harm to remedy."

        1. As I've said many times, THERE IS NO PROBLEM, just baseless hysteria.

          Anyway, a dubious principle already much-ignored by the law hardly strikes me as much of a concern when dealing with an unprincipled Court-created atrocity. I only wish that I thought SB8 was going to do much good, but I think it's merely gestural,

          1. You act as though the logic of SB 8 wouldn't apply to things that aren't unprincipled Court-created atrocities, like freedom of religion or speech, but it surely would. Therefore, your logic is invalid.

  7. Is it true that no one thinks the courts could have made up section 1983 on their own? What about Bivens?

    1. Right. Or, in a different context, Miranda.

      1. Both right, IMHO. And the Bivens action prides itself on being modeled after Section 1983, no?

  8. Justice Thomas’ suggestion seems very reasonable. When a state enacts a scheme where private parties with no identified personal stake in the matter (whether at all or to the outer limits of standing) get to file civil lawsuits against people committing conduct identified as unlawful, this is not a civil tort system but a system of private attorneys general.

    And when private citizens act as private attorneys general, Justice Thomas suggested, they are in fact acting as agents of the state, and hence can be sued under Ex Parte Young. Further, they can be regarded as agents of the state’s attorney general, so the attorney general “and agents” could be sued.

    All this seems quite reasonable. It avoids the problems that would come with trying trying to sue judges, court clerks, etc.

    There are existing laws, like federal qui tam and housing discrimination laws, that also have a private attorneys general enforcement mechanism, although one parallel rather than instead of government enforcement. But extending the principle to these cases - where the attorney general gets sued anyway - wouldn’t really change anything.

    It seems like this might work.

    Are there any downsides to this approach?

    1. Thomas is right about all of that.

    2. Yes, the obvious downside is that it would be a huge advance in the tryannical power of the kritarchy for no good reason.

      1. Giving effect to the text of the Constitution is not tyranny. Passing unconstitutional laws is, though. Legislative supremacy is in the United Kingdom, not America. Our forebears fought a war and we are no longer subject to Parliament. You might have heard of this event.

  9. "Texas didn't need to limit itself to a minimum of $10,000 in statutory damages; it could have picked $1 million instead. But here, the chilling effect ultimately comes from the fact that no one knows whether the Court will uphold Roe and Casey. "

    What a bunch of moronic horseshit

    1. We know pefectly well that the Court will, of course, not slice away any substantial portion of Casey.

  10. As I have said before, there is a simple solution. Enter a declaratory judgment against the State of Texas that the law is unconstitutional. If and when anyone tries to enforce it, then the federal court can enjoin that effort.

    1. Without a problem (still less an actually unconstitutional law) there is no need for a "solution", still less a Constitution-defying kritarchal grab of power.

  11. DECLARATORY JUDGMENT ANYONE? 

    Juxtaposition: Likely prospective merits (or anticipating what the Supremes will do) vs. the final word and fiat on the merits on SB8 validity/voidness

    The declaratory judgment actions concerning SB8 are pending in state court: 14 in Travis County (just consolidated - sort of -- by the Texas MDL panel) and one (though a bit dubious) in Bexar County: Felipe Gomez v. Alan Braid. 

    As for federal litigation, the most recent jump-the-gun cert petition by WWH relates to an appeal on jurisdictional issues only: denial of the defendants' motion to dismiss for want of federal jurisdiction and the trial court stay occasioned by it.

    And the U.S. v. Texas pre-judgment cert relates to an appeal from a preliminary injunction stayed by the Fifth Circuit, not a summary or final judgment.

    What if the SCOUTS were to realize that these two cases are cans of worms and de-grant cert in both of them as improvidently granted, either now or after Dobbs is decided? 

    Short of that, the most politically expedient course for the SCOTUS - to be seen as doing something in response to all the-sky-will-fall-down-the-slippery-slope clamor -- may be to reverse the stay as to private-person defendant Dickson and have him only return to the district court on the conclusion that he is not entitled to interlocutory appeal because he is not a state official. The abortion providers can then (re)urge their application for preliminary injunction against him only as the sole non-immune defendant and putative would-be SB8 claimant.

    Meanwhile the Planned Parenthood affiliates can get their motion for summary declaratory judgment heard in Travis County (supposedly set for hearing or submission later this month), and the state appellate process can take its ordinary course if it’s granted. And if it's denied, perhaps a permissive interlocutory appeal, given the high salience and import of the controlling legal issues concerning validity of a state law.

    Bottom line: The declaratory judgment claims are before *state* district courts, not the SCOTUS, not the Fifth Circuit, and not yet ripe for decision by Judge Pitman (if ever), at least not validly and finally in the preliminary injunction context. 

  12. "unless there were a constitutional right to pre-enforcement review, which there isn't"
    '...No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...'
    MAKE or enforce. By definition, there must be a way to review an unenforced law, or this is meaningless. It is not "principled" to "interpret" words out of the plain text of the Constitution. Due process applies to enforced laws, but the privileges or immunities clause, by its express terms, covers laws which have been made, regardless of whether they have been enforced. Otherwise, it would just say enforce. "Make or enforce" is not a term of art that means enforce. It is a phrase written in plain English that means what it says.

    "Yet the federal government structures its conduct to avoid judicial review all the time—such as by using enforcement discretion under Heckler v. Chaney rather than implementing a new regulation that might be contested under the APA."
    This is irrelevant, as the 14th amendment applies to the states; the practice of the Federal government is of no bearing on its meaning.

    It doesn't matter what the pattern, practice, or procedure was at the founding, the 14th Amendment alters this meaning and is controlling, regardless of your preferred philosophy. Judicial activist decisions from the Reconstruction and its aftermath falsely refusing to give effect to this shift in the American structural landscape are plainly in error.

    "If the law allowed for suing judges or clerks under statutes like these, then we should have seen some of these suits already."
    We haven't seen these suits because courts have been operating under false precedents that have stripped the 14th Amendment of its true meaning. Cruikshank, the Slaughterhouse cases, the Civil Rights cases, etc. were all manifestly illogical "interpretations."
    They are not evidence of what the correct legal rules are or should be.

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