Ten Problems with United States v. Texas
Over the past decade, I’ve lost track of how many case were captioned Texas v. United States. Now, we have the case in reverse: United State v. Texas. The Biden administration has sued Texas over S.B. 8. DOJ explains that “[t]he State of Texas includes all of its officers, employees, and agents, including private parties who would bring suit under S.B. 8.” By my count, there are at least ten problems with this complaint.
First, DOJ invokes Shelley v. Kraemer to support a suit against state court judges:
Awarding the monetary relief that S.B. 8 authorizes—to plaintiffs who need not demonstrate any injury or other connection to the underlying abortion procedure—constitutes state activity designed to violate the Fourteenth Amendment rights of women in Texas. “That the action of state courts and of judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment, is a proposition which has long been established by decisions of th[e] [Supreme] Court.” Shelley v. Kraemer, 334 U.S. 1, 14 (1948). Thus, while Texas has gone to unprecedented lengths to cloak its attack on constitutionally protected rights behind a nominally private cause of action, it nonetheless has compelled its judicial branch to serve an enforcer’s role. “State action, as that phrase is understood for the purposes of the Fourteenth Amendment, refers to exertions of state power in all forms.”
I’ve never been persuaded by the Shelley v. Kraemer argument. The state action in that case involved private citizens going to court to enforce a discriminatory covenant. But there is no allegation that judges would enforce an unconstitutional statute. We presume judges will follow the law. If a state judge tries to enforce an unconstitutional statute, there may be a place for federal courts to intervene. But a remedy at this point is premature. Moreover, judges are improper defendants, because codes of judicial conduct prevent them from opining on the validity of laws that may come before them.
Second, DOJ is about to run into a precedential buzzsaw. Pending before the Fifth Circuit is an appeal from Whole Woman’s Health. The three judge panel had issued a temporary administrative stay. And that same three-judge panel will likely hold that the government defendants in that case–including state court judges–have no role to enforce S.B. 8. As soon as that opinion drops, the District Court will be bound by that circuit precedent. All claims against Texas’s governmental defen
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