As a counterpoint to yesterday's earlier optimistic assessment, here's a second, more skeptical assessment of the complaint in United States v. Texas (W.D. Tex. 2021).
For standing purposes, the three counts can be grouped into two categories.
Count I asserts irreparable injury to the sovereign interest of the United States in ensuring that individual federal constitutional rights "remain redeemable in federal courts." ¶ 13. Although portions of the complaint read at times like the U.S. is asserting individual rights as an association might assert the rights of its members, that does not seem to be what's going on here. These allegations of the complaint instead seem to be focusing on ensuring the enforceability in federal court of individual rights only insofar as those rights relate to the interest of the United States as a sovereign in ensuring such enforceability. Put another way, it seems as if the United States is asserting a sovereign interest theory based on the combination of (1) infringing "the constitutional rights of the public at large," and (2) blocking "the injured members of the public from challenging that law in court." ¶ 44. This seems to be a novel theory of sovereign-interest standing, but perhaps novelty calls forth novelty. In any event, let's put it aside for now and come back to this one after looking at the other category.
Counts II (preemption) and III (intergovernmental immunity) rest on a more familiar theory of injury, namely that the Texas Heartbeat Act conflicts in various ways with the operations of the federal government through effects on officials, employees, and contractors. Assuming that this kind of injury is a kind that counts, the United States still seems to have a California v. Texas problem of showing "actual or imminent" injury that is "fairly traceable" to "allegedly unlawful conduct." The key paragraph here is ¶ 78:
The United States has an “actual and well-founded fear that” the arms of the state that Texas has enlisted will enforce the law directly against it and its agencies, as well as against the public at large, whom the State has endeavored to keep from challenging the statute. Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988). There is a self-evident risk that at least one of the many state actors capable of enforcing the law would sue in the case of a violation, and that the state’s judicial apparatus would adjudicate that claim.
As thus framed, this is an organizational standing kind of theory that depends on interference with specific federal entities, officials, employees, contractors, etc. But as deployed here—with reliance on "a self-evident risk that at least one of the many state actors capable of enforcing the law would sue" [at least one of the federal entities, employees, officials, contractors, etc.]—-the government seems to be relying on a statistical likelihood theory rejected by the Court in Part III of Summers v. Earth Island Institute (2009). The US will have a chance to submit affidavits or other evidence to flesh out its allegations. But theory itself appears insufficient as pleaded.
It's hard to believe that DOJ would rate the chance as good that these Counts II and III could get through the current Supreme Court on this "self-evident risk that at least one" theory. The alphabet soup of DOL, ORR, BOP, CMS, OPM, and DOD in ¶¶ 47-77 provide an appearance of specificity, but still at too high a level of generality.
So let's go back to the sovereign interest theory in Count I. The government's most expansive precedents here are two Fifth Circuit decisions from the 1960s, United States v. City of Jackson (5th Cir. 1963), and Fla. E. Coast Ry. Co. v. United States (5th Cir. 1965). Each of those cases involved obstructions of interstate commerce (one via racial discrimination in transportation and the other a railway strike). The allegations of United States v. Texas, by contrast, point to an increase in interstate activity due to the in-state abortion restrictions. That kind of activity might be sufficient for federal legislation, but it's hard to see how it's a hook for sovereign-interest standing apart from any particular federal statutory scheme.
The idea that the United States has a sovereign interest to support standing to seek equitable relief enjoining the application of state law whenever that law's operation allegedly invades individual rights is obviously overbroad. That is why the complaint always links this alleged invasion to the foreclosure of judicial review. But as Howard Wasserman has pointed out repeatedly, this depends on the implausible assertion that "defending in state court and appealing to SCOTUS [is] not a traditional mechanism of federal judicial review."
There's more that can be said, but this is all I've got for now. I'd like to take back my earlier assessment that at least one of the counts will make it to a merits determination (at least by the time the Supreme Court is done with the case; all bets are off for W.D. Tex. and 5th Cir. since I don't know them well enough to have an opinion). But I'll stick with the assessment that "the federal government will lose on all counts whether or not the merits are reached on any of them." We'll see!
Thursday, September 9, 2021
Earlier today the United States filed a complaint against Texas in the Austin Division of the United States District Court for the Western District of Texas. The complaint seeks a declaratory judgment that the Texas Heartbeat Act is unconstitutional in its entirety, along with "[a] preliminary and permanent injunction against the State of Texas—including all of its officers, employees, and agents, including private parties who would bring suit under S.B. 8—prohibiting any and all enforcement of S.B. 8."*
This complaint is a move I've been waiting for since first analyzing the jurisdictional and procedural complications posed by the Texas Heartbeat Act. It's not without its risks to the Biden Administration, but inaction would have been even worse. In a Prawfsblawg comment last Friday morning, I observed that "Texas does not enjoy sovereign immunity in suits brought by the United States. If the United States itself can develop the grounds for injunctive relief against Texas, sovereign immunity would not be a barrier." If the United States wanted to make a particularly forceful claim for attention, I suggested the potential for filing directly in the original jurisdiction of the Supreme Court of the United States. I noted the Court's 1892 decision allowing another case called United States v. Texas to proceed in the Court's original jurisdiction and pointed interested readers to James E. Pfander's important article "Rethinking the Supreme Court's Original Jurisdiction in State-Party Cases." Those are still good places to start in diving in to some of the jurisdictional issues. Now that we have a complaint to focus on, though, it's better to begin with that.
There are three counts in the portion of the complaint labeled "Claims for Relief":
Count I (Supremacy Clause--Fourteenth Amendment) asserts that "S.B. 8 violates the Fourteenth Amendment of the U.S. Constitution, as elucidated by the Supreme Court in Roe and Casey, by depriving women of the ability to obtain a pre-viability abortion in most cases. S.B. 8 therefore is invalid under the Fourteenth Amendment and the Supremacy Clause." ¶ 82.
Count II (Preemption) contends that "S.B. 8 is preempted by federal law—including the statutes and regulations outlined [earlier in the complaint]—to the extent it prohibits certain pre-viability abortions that federal agencies are charged with facilitating, funding, or reimbursing." ¶ 87.
Count III (Violation of Intergovernmental Immunity) states that "S.B. 8 directly regulates the activities of the federal government and its contractors, grantees, and nongovernmental partners. S.B. 8 therefore violates the federal government’s intergovernmental immunity and is invalid in such applications." ¶ 91.
The complaint raises a bevy of complex and novel jurisdictional, procedural, and remedial issues, not to mention the high stakes of the substantive law at issue.
Those high stakes are perhaps the best place to start in analyzing this complaint. This sovereign v. sovereign lawsuit raises the stakes for the Supreme Court's consideration of the ongoing validity of its abortion precedents. The viability line of Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey was already likely to be swept away in Dobbs v. Jackson Women's Health Organization. By filing United States v. Texas, the Biden Administration has raised the stakes even higher than they already were in Dobbs. My hopeful assessment is that the federal government's lawsuit today makes a broad decision Dobbs at least a little more likely than it had been. A decision that leaves the substantive constitutional law of abortion unclear as it applies to laws other than the 15-week ban at issue in Dobbs has always been undesirable for the Court. Assuming that a majority of the Justices already recognizes the unsoundness of Roe and Casey, one contributing factor leading to that conclusion is the perception that umpiring abortion laws has undermined the Court as an institution. With a presidential administration and one of the two major political parties already primed to attack the Court for the reversal of Roe and Casey, the Court may as well do its best to leave the field decisively. The way to do that is to acknowledge that state abortion restrictions are justified as extending the protection of the laws to unborn persons within their respective jurisdictions, and the federal judiciary has no judicially manageable standard by which it can displace the states' treatment of unborn persons as Fourteenth Amendment persons. Nor can the federal government by fiat simply render unborn persons as nonpersons by hiding behind Roe's erroneous determination that Fourteenth Amendment personhood definitively does not begin until birth.
As for United States v. Texas, I need to do more research and analysis, but I'm inclined to think now that (1) this suit by the federal government directly against the state will make it to a merits determination on at least one count (with Count I being the most likely), and (2) the federal government will lose on all counts whether or not the merits are reached on any of them.
I hope to have more to say in coming weeks as I and others dig deeper into the alluring complexities of United States v. Texas, but that's all I have for now.
* (S.B. 8 is what the complaint calls the Texas Heartbeat Act even though it's now an enacted law and not just a Senate Bill. This kind of rhetorical move is common in litigation like this. One way to form a quick assessment of the likely outlook of someone writing about this Texas law is to see what term they use to describe it.)
Wednesday, September 8, 2021
Every year, teams from law schools across the country participate in our Tournament, arguing before a mock Supreme Court of the United States. We hope you will join us this fall to celebrate student scholarship, appellate advocacy training, and address challenging questions involving the First Amendment. Be sure to mark your calendars, and we hope to see you (virtually) for this exciting event!
https://shop.nd.edu/C21688_ustores/web/product_detail.jsp?PRODUCTID=8367&SINGLESTORE=true
The tournament takes place: Friday, October 8, 2021 through Sunday, October 10, 2021.
The case problem, official rule book, and scoresheet will be distributed on Friday, September 10, 2021. Teams will have until Saturday October 2, 2021 to submit their briefs.
Questions regarding the tournament should be directed to Zahraa Nasser at [email protected]
Tuesday, September 7, 2021
Dating back to 1548, most Jesuit educational institutions, and many Catholic colleges and universities, mark the beginning of the academic year with the Mass of the Holy Spirit. This year, at the Catholic University of America, our Chancellor and Cardinal, Archbishop Gregory, delivered a particularly special homily regarding the Catholic lawyer. He began by saying:
The Catholic University of America has produced a number of great lawyers over time. Many of you at Mass today perhaps are now enrolled in our law school. Others of you may have lawyers in your own families. A good lawyer can be a wonderful helper in a difficult situation, because a lawyer is a person who is dedicated to discovering the truth at all costs. Lawyers also take a lot of criticism in our society. Some of that criticism may be justified. At other times, such criticism may be directed toward lawyers because of envy, anger, or misunderstanding of the kind of things that a bright attorney can do to improve life for lots of people.
You have probably never thought of the Spirit of God as an attorney, but that is close to the meaning of the word: PARACLETE!
I have always bristled at the lawyer jokes, myself. The attorneys I know work tirelessly on behalf of many marginalized people and offer a voice to those who have none. Many of the students I have had the honor of teaching chose to attend law school, not for promises of financial success, but simply to improve the world around them and respond to injustices they have encountered. Cardinal Gregory's homily offers an excellent rebuttal to those who have a lesser view of attorneys - and a reminder to us all of our vocation to teach and advocate for the greater good. His full homily can be found here.
