WSJ: DOJ Will Sue Texas, As Soon As Thursday
On September 2, President Biden threatened to sue Texas over S.B. 8. Attorney General Garland issued a statement about possible prosecutions under the FACE Act. However, it is unclear how that statute would even be relevant, since clinics are not performing abortions now. Laurence Tribe wrote that DOJ should prosecute Texans under the KKK Act. But after Tribe’s advice on the eviction moratorium case crashed and burned, I suspect his cachet in the White House has diminished.
On Wednesday, the Wall Street Journal reported that DOJ may file a lawsuit as soon as Thursday. Details are scant:
The Justice Department is expected to pursue an argument that the Texas law illegally interferes with federal interests, one of the people said. The precise nature of those arguments couldn’t immediately be learned.
If the United States files suit against Texas, or Texas state officials, the defense of sovereign immunity is no longer available. But that is only one hurdle. It still isn’t clear who the United States would sue. I don’t think a suit against Texas, as a whole, would even work. State governments are not unitary entities. Indeed, the federal government routinely rails against non-party (nationwide) injunctions. There is no equivalent statewide injunction against everyone in the state.
Moreover, the suits against state court judges is problematic for a reason that hasn’t gotten much attention.
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