US Attorney General Merrick Garland and the Department of Justice have filed a complaint against the state of Texas in an attempt to stop enforcement of the state’s anti-abortion law, which empowers bounty hunters to deprive women and pregnant people of their constitutional rights.
In terms of legal authority, this was the most the DOJ could do. The Justice Department is not empowered to, say, give Texas back to Mexico or force Gregg Abbott to push a bowling ball out of his urethra against his will. It cannot stop the law; all it can do is ask courts to stop the law and support the Constitution.
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After the district court, the case will be appealed to the US Court of Appeals for the Fifth Circuit, a court controlled by some of the most radical conservatives in the entire country. And after that, the case will be appealed to the Supreme Court of the United States, where conservative justices have been handpicked for their theocratic views and hostility to women.
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Senate Bill 8 is premised on a brazen attempt by Texas to avoid judicial review. By empowering private citizens, as opposed to government officials, to enforce its restrictions, Texas claims that it, the state, cannot be held in violation of the Constitution. This is the argument that the Supreme Court accepted last week with its 5-4, one-paragraph decision to allow the Texas law to go forward—a decision the court released in the dead of night, without any of the conservatives having the guts to sign their name to their evil.
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Under relevant precedents, the state can be sued for constitutional violations when it empowers private citizens with the powers of law enforcement. If conservatives on the Supreme Court were intellectually honest, Garland has solved their legal problem by pointing to their own precedents regarding state enforcement under the guise of private action.
Of course, the conservatives on the Supreme Court are not intellectually honest.
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Luckily, the DOJ seems to have anticipated this and so gives the Supreme Court something else to think about. The complaint invokes the principle of “intergovernmental immunity,” which is the concept that individual states cannot prevent the federal government from enforcing federal laws.
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Garland argues that there are many federal officials operating throughout Texas who could also be accused of aiding or abetting abortion services, merely by carrying out their official duties as required by law. The DOJ complaint mentions the Department of Labor, the Office of Refugee Resettlement, the Bureau of Prisons, the Centers of Medicare and Medicaid Services, the Office of Personnel Management, and the Department of Defense as federal agencies, operating inside Texas, who have a legal duty to facilitate or provide information about abortion services.
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Under the brazen and unconstitutional Texas law, a corrections officer who allows a pregnant inmate to receive constitutionally protected medical care could be sued by a private bounty hunter for $10,000. This is a violation of the intergovernmental immunity principle. It also gives the Department of Justice standing to sue now and not later, because right now the Texas law is causing harm to identifiable government interests.
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If the Supreme Court rejects these arguments, maybe that will be the day Democrats finally wise up to what a permanent conservative majority on the court really means and get serious about expanding the court. The Justice Department is doing the right and normal thing by bringing this complaint. If they lose, maybe people will be willing to do some abnormal things to protect the constitutional rights of women.
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The conservatives on the Supreme Court might love controlling women and forcing them to give birth against their will. But do they really want to vitiate the principle of intergovernmental immunity? Because, if they do, I’d like to share some laws New York state could pass regarding the work of the Immigration and Customs Enforcement agency, Border Patrol, and the Department of Homeland Security. I would very much like to become wealthy by being a private bounty hunter who can sue ICE agents for $10,000 every time they “aid or abet” a deportation order. Let’s make that happen, Governor Hochul.
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The president said he was ordering a “whole of government” response to Texas, and specifically called out the Department of Justice and the Department of Health & Human Services. DOJ has shot its shot; let’s see what HHS has in store. Let’s see if there is executive action forthcoming. Heck, I’d like to see the Department of Transportation providing free plane flights back to America for people in Texas seeking constitutionally protected medical care after six weeks of pregnancy.
Elie Mystal @ The Nation
UPDATE:
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