The Volokh Conspiracy

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Free Speech

Pre-Enforcement Constitutional Challenges

There's no general federal right to them; they are often available when a law is enforced by government officials, but generally not as to laws in which private citizens sue (whether over abortion, speech, religious exercise, gun ownership or sales, or anything else).


The Court's decision today in the Texas SB8 case, Whole Women's Health v. Jackson, has many moving parts. But the heart of the majority's practical explanation for why the result makes sense is that federal law has never guaranteed a right to a pre-enforcement constitutional challenge to a law. In particular, when it comes to civil lawsuits (including ones that implicate constitutional rights, such as the Free Speech Clause, the Free Exercise Clause, the Second Amendment, and more), potential targets must often wait until they are sued and then raise the Constitution as a defense, rather than by suing up front.

Pre-enforcement challenges to governmental enforcement do happen, because one can seek an injunction against the enforcer. But when it comes to tort liability in which there could be a wide range of potential plaintiffs, such pre-enforcement challenges are usually unavailable, since there's no particular person one can sue up front. Again, constitutional rights can still be vindicated; they just have to be raised defensively in response to a lawsuit, rather than preemptively in the rightsholder's own lawsuit seeking an injunction.

We see this in many free speech cases, such as New York Times v. Sullivan and Snyder v. Phelps: When speakers feel chilled by unconstitutionally overbroad tort rules related to, say, libel (Sullivan), or intentional infliction of emotional distress (Snyder), or the right of publicity (an area that remains unresolved), they generally need to raise the defenses after they are sued—the New York Times, for instance, couldn't just sue the state of Alabama before Sullivan's lawsuit in federal court to try to get Alabama's libel law narrowed.

The same would apply to tort lawsuits against gun manufacturers, gun sellers, or gun owners as well; any Second Amendment defense, or for that matter any federal statutory defense under the Protection of Lawful Commerce in Arms Act would have to be raised as a defense, not as a pre-enforcement challenge against state court judges or clerks. To be sure, the very presence of such civil causes of action may create a "chilling effect"; but that has historically not been seen as enough to create a categorical entitlement to filing a pre-enforcement challenge to block the civil cause of action.

Here's the key passage from the majority:

[M]any paths exist to vindicate the supremacy of federal law in this area. Even aside from the fact that eight Members of the Court agree sovereign immunity does not bar the petitioners from bringing this pre-enforcement challenge in federal court [because the majority allowed a suit to be brought against state medical licensing officials -EV], everyone acknowledges that other pre-enforcement challenges may be possible in state court as well. In fact, 14 such state-court cases already seek to vindicate both federal and state constitutional claims against S. B. 8—and they have met with some success at the summary judgment stage. Separately, any individual sued under S. B. 8 may pursue state and federal constitutional arguments in his or her defense….

The truth is, too, that unlike the petitioners before us, those seeking to challenge the constitutionality of state laws are not always able to pick and choose the timing and preferred forum for their arguments. This Court has never recognized an unqualified right to pre-enforcement review of constitutional claims in federal court. In fact, general federal question jurisdiction did not even exist for much of this Nation's history. And pre-enforcement review under the statutory regime the petitioners invoke, 42 U. S. C. §1983, was not prominent until the mid-20th century. To this day, many federal constitutional rights are as a practical matter asserted typically as defenses to state-law claims, not in federal pre-enforcement cases like this one. See, e.g., Snyder v. Phelps, 562 U. S. 443 (2011) (First Amendment used as a defense to a state tort suit).

As our cases explain, the "chilling effect" associated with a potentially unconstitutional law being "'on the books'" is insufficient to "justify federal intervention" in a pre-enforcement suit. Instead, this Court has always required proof of a more concrete injury and compliance with traditional rules of equitable practice. The Court has consistently applied these requirements whether the challenged law in question is said to chill the free exercise of religion, the freedom of speech, the right to bear arms, or any other right. The petitioners are not entitled to a special exemption.}

Here is what strikes me as the heart of the response, from Justice Sotomayor's dissent (joined by Justices Breyer and Kagan):

Under normal circumstances, providers might be able to assert their rights defensively in state court. These are not normal circumstances. S.B. 8 is structured to thwart review and result in "a denial of any hearing." To that end, the law not only disclaims direct enforcement by state officials to frustrate pre-enforcement review, but also skews state-court procedures and defenses to frustrate post-enforcement review. The events of the last three months have shown that the law has succeeded in its endeavor….

S.B. 8's formidable chilling effect, even before suit, would be nonexistent if not for the state-court officials who docket S.B. 8 cases with lopsided procedures and limited defenses. Because these state actors are necessary components of that chilling effect and play a clear role in the enforcement of S.B. 8, they are proper defendants.

Moreover, the Court has emphasized that "the principles undergirding the Ex parte Young doctrine" [which had authorized pre-enforcement challenges to schemes where a government official was doing the enforcing -EV] may "support its application" to new circumstances, "novelty notwithstanding." No party has identified any prior circumstance in which a State has delegated an enforcement function to the populace, disclaimed official enforcement authority, and skewed state-court procedures to chill the exercise of constitutional rights. Because S.B. 8's architects designed this scheme to evade Young as historically applied, it is especially perverse for the Court to shield it from scrutiny based on its novelty.

{No one contends … that pre-enforcement review should be available whenever a state law chills the exercise of a constitutional right. Rather, as this Court explained in Young, pre-enforcement review is necessary "when the penalties for disobedience are … so enormous" as to have the same effect "as if the law in terms prohibited the [litigant] from seeking judicial construction of laws which deeply affect its rights." All the more so here, where the State achieves its unconstitutional aim using novel procedural machinations that the Court fails to acknowledge.