This week, the Supreme Court heard oral arguments in two challenges to S.B. 8. S.B. 8 bans almost all abortions in the state of Texas by allowing anyone, including people who do not live in the state, to bring a lawsuit in state court against anyone who performs an abortion after six weeks, or helps to make one possible. Leaving enforcement to the populace raised a unique procedural question in this case: who should be sued over the Texas law? In this episode, we unpack that question and the complex issues in these cases, and recap the argument including the questions asked by the Supreme Court justices. Host Jeffrey Rosen is joined by Miriam Becker-Cohen, Appellate Counsel at the Constitutional Accountability Center who co-authored briefs in support of the abortion provider Whole Women’s Health and the Biden administration, and Stephen Sachs, the Antonin Scalia Professor of Law at Harvard Law School who has covered these cases for the legal blog The Volokh Conspiracy.
FULL PODCAST
This episode was produced by Jackie McDermott and engineered by Greg Scheckler. Research was provided by Michael Esposito, Chase Hanson, Sam Desai, and Lana Ulrich.
PARTICIPANTS
Miriam Becker-Cohen is Appellate Counsel at the Constitutional Accountability Center. She co-authored a brief on behalf of CAC in both cases in support of petitioners—the abortion provider Whole Women’s Health and the Biden administration.
Stephen Sachs is the Antonin Scalia Professor of Law at Harvard Law School. He’s covered these cases for the legal blog The Volokh Conspiracy.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
ADDITIONAL RESOURCES
- Whole Woman’s Health v. Jackson oral argument transcript
- United States v. Texas oral argument transcript
- Ex Parte Young (1908)
- Roe v. Wade (1973)
- Planned Parenthood of Southeastern PA v. Casey (1992)
- Marbury v. Madison (1803)
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
[00:00:00] Jeffrey Rosen: Hello friends, I'm Jeffrey Rosen, President and CEO of the National Constitution Center, and welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. This week, the Supreme Court heard oral arguments in two challenges to a Texas law that bans abortion after six weeks. Today, we will unpack the complicated procedural issues in the case, and I'm joined by two of America's leading experts on the case who are so well equipped to help all of us understand the procedural stakes. Miriam Becker-Cohen is appellate counsel at the Constitutional Accountability Center. She co authored a brief on behalf of CAC in both cases in support of the petitioners, the abortion provider, Whole Women's Health and the Biden administration. Miriam, thank you so much for joining.
[00:01:02] Miriam Becker-Cohen: Thank you so much for having me, Jeff.
[00:01:04] Jeffrey Rosen: And Stephen Sachs is the Antonin Scalia professor of law at Harvard Law School. He has covered these cases for the legal blog, the Volokh Conspiracy. Stephen, it's great to have you back on the show.
[00:01:17] Stephen Sachs: Good to be here.
[00:01:18] Jeffrey Rosen: Let's begin with the Whole Woman's Health versus Jackson case. Miriam in the Constitutional Accountability Center's brief, you argued that to accept Texas's argument that it's not possible to file a pre enforcement challenge to this law would eviscerate the rule of federal supremacy and open the door to widespread nullification of constitutional rights through legislative maneuvering. Tell us more about what you think the stakes are and why you believe it is possible to file a pre enforcement challenge in Whole Women's Health versus Jackson.
[00:01:56] Miriam Becker-Cohen: Sure. Thanks, Jeff. So as our brief highlights, and as you just said, the SB8 litigation at this stage is really about a lot more than the fundamental right to abortion as enshrined in the 14th Amendment. This litigation is fundamentally about whether states can nullify federal law and nullify constitutional rights and avoid judicial review of their efforts to do so. So in, in these cases, what Texas has done, what the Texas Legislature has done, has delegated enforcement of SB8, a six week abortion ban that violates the Supreme Court's long standing precedents enshrining the right to a pre viability abortion to the populace at large, to people who have suffered no particular injury related to the abortion that they might seek to challenge and the, the abortion provider they might seek to haul into court under SB8.
So, by delegating this, this enforcement power to the populace at large, Texas says that it cannot be sued in federal court under this doctrine known as Ex parte Young. So, just a little bit about the Ex parte Young doctrine that evolves out of 1908 Supreme Court case in which the court created the what's, what's commonly known as a fiction that when a state official acts in derogation of federal law, that official is not part of the state for purposes of sovereign immunity, which is a principle that prevents states from being sued in federal courts. And so what Texas is saying in the suit is, you can't sue Texas State officials because SB8 by delegating enforcement power to the populace at large and barring enforcement of the law by state officials, means that Ex parte Young is not applicable here.
But as we explained in our brief, the whole principle animating the Ex parte Young doctrine, the whole reason that the Supreme Court created the fiction in that case, is because Ex parte Young is designed to allow individuals who are harmed by unconstitutional state laws to vindicate their rights in federal court and enforce the supremacy of federal law. So if neither of these [laughs] lawsuits were to succeed, if the Whole Women's Health challenge were to succeed here, California could ban guns and just delegate enforcement power to the populace at large and say, "Sorry, you're out of luck." So really, any constitutional right could fall victim under, under this scheme. So, the stakes are very high.
[00:04:30] Jeffrey Rosen: Thank you very much for that clear introduction. Stephen, in your widely read posts on the case, you argue that the basic problem in the suits is that neither case managers to pair a proper plaintiff with a proper defendant. The abortion providers are proper parties, but the judges and clerks they're suing aren't. Tell us more about that mismatch in your, in your view between the plaintiffs and defendants and why in the Whole Women's Health case, the provider plaintiffs are the right people to defend their own interest, but there is not a clear class of defendants under Ex parte Young that they can sue.
[00:05:07] Stephen Sachs: Sure. So, we often think about courts as striking down laws unconstitutional. But in fact, courts only review whether a law is constitutional or not. When they have a case before them with a plaintiff who's seeking particular relief from a defendant that they're entitled to that relief from that goes all the way back to Marbury. That the Supreme Court, Marbury had to decide whether the Judiciary Act of 1789 was constitutional, because it came up in a case where one plaintiff, Mr. Marbury wanted his commission from Mr. Madison, and it had to decide whether it had the authority to grant that. In this case, Texas has structured its law in such a way as to give the right to pursue a cause of action in court to ordinary citizens. And it has prohibited conduct by the abortion provider defendants. In lots of cases defendant in that situation would just sue whatever officer was seeking to enforce the law under the what is generally called a fiction of Ex parte Young.
And they would say that by filing the prosecution against them, as happened an Ex parte Young, a prosecutor was violating the Constitution and therefore lost and they shield of sovereign immunity and be, could be sued personally for their wrong that they were doing to the defendant. Here, that argument doesn't really work. Because the providers are definitely affected by the law. If they were going to be prosecuted, they could make an argument under Ex parte Young to sue the prosecutor. But here are the people who will be filing actions against them, who will be commencing actions on court are ordinary citizens, and they don't know who they are yet. So normally, what would happen in a case like this, is that an ordinary citizen would file a lawsuit under SB8 against the abortion provider defendant, at which point the provider would argue that their conduct is protected under Roe and Casey, and that they have every right under the Constitution to do what they did. And then the court would have to decide that question one way or the other.
And if they decided that the wrong way, you could appeal up to the US Supreme Court, which would eventually have to make a decision. What the providers want to do here is the ability to sort of front run that defensive litigation and file a lawsuit against some defendant somewhere that would get a court ruling on whether SB8 is constitutional before they would need to violate it and then be sued. And it's understandable that they would want to do this cause the penalties are quite large, and you don't know where a suit is coming from. There are lots of rules in SB8 that make it very inconvenient to defend one of these suits. Some of those might themselves be unconstitutional and we can talk more about that later. But the basic problem is that they need to find someone to sue to get the court to make a ruling, the court doesn't just have a roving commission to go through the statute book and identify which ones are unconstitutional.
So they offer a couple of options. One is that they could sue the Texas Attorney General on the theory that any of the private citizens are really an active concert in participation with the Attorney General, they're all sort of part of the same scheme. I don't think that really works, because in fact, the Attorney General has basically no enforcement role under SB8. They can't do anything. And so an order against the Attorney General saying, "Stop doing this," wouldn't help. Maybe there would be no redressability in the, in the language of the court standing decisions. They could try suing the judges and the clerks of the state court who would have to hear or docket those cases, but there too you have a lot of problems. Ex parte Young explicitly said that you can't sue judges and that you can't sue the machinery of the state judiciary.
And the reason was because when judges and clerks hear or docket a case, they're not violating the Constitution they're just doing their job. So, maybe you could argue that the prosecutor who files a prosecution against you based on an unconstitutional law is trying to strip you of your constitutional rights, and therefore is an appropriate target under Ex parte Young. I'm not sure that's entirely true. Normally suits like that you have to file against your opposing party, not against their lawyer, which is who the Attorney General is. But even assuming the fiction of Ex parte Young, it still doesn't work against the clerk's or the judges, because they're not trying to strip you of anything. A case comes in, the plaintiff says they're entitled to $10,000 from the defendant. The clerk doesn't review that question. They just stamped the paper is received, and then it's the judge's job in state court to decide whether the plaintiff is entitled to that relief or whether the Constitution protects the defendant. Suing the judges and clerks would be a lot like suing the mailman who brings the complaint to the courthouse.
I mean, it's true, they have some role in all of this happening, but what they're doing is in no way a violation of the law, and they're the wrong party to be the defendant. You could try suing a defendant class of anyone in the universe who might bring one of these lawsuits that has its own problems and we could talk more about that later. But the real problem is that Texas in structuring its law this way, followed the rules about who gets to sue whom, and so the court would have to essentially break some rules in an effort to protect others. It would need to say if it wanted to let Whole Women's Health sue the judges and clerks, they were going to break the rules about who's a proper defendant in order to safeguard a constitutional right that itself is, is under a great deal of disagreement and scrutiny, and will be debated further in the Debs case later this year.
[00:10:41] Jeffrey Rosen: Thank you very much for that. Miriam, Stephen just ran down the possible defendants and said none of them are appropriate. You could try suing the Texas Attorney General, as Justices Breyer and Kagan suggested at oral argument. But he said the, the Attorney General has no enforcement roles. So there's no redressability. You could try suing judges, but as Justice Thomas pointed out, Ex parte Young says you can't sue judges, you could try suing clerks, but Justice Alito said they just have a ministerial role, and they're not depriving anyone of any thing.
So, for that reason, Stephen said the court would have to break the rules about who can be sued establish an Ex parte Young in order to allow the suit to go forward. Do you agree or disagree and, and who should be sued, and, and what did you hear at the oral argument, the justices converging around on the question of who the best defendant or defendants might be?
[00:11:29] Miriam Becker-Cohen: Sure. That's a lot, so I'm gonna try to address each of those questions in turn. Fundamentally, the, the idea that the court would have to break some rules to permit Whole Woman's Health to sue in this case, I think that phraseology sort of reflects a bit on how one thinks about the court itself and how it crafts rules and whether rules are written for the case before the court, whether when the court made the statements that it did in Ex parte Young, it was intending to foreclose all future lawsuits like the sort brought here, or whether rules are really meant to animate constitutional roles that are, that are crafted by the court are really meant to animate broad important binding constitutional principles like the role of federal supremacy and the rule that states cannot nullify federal constitutional rights by bypassing state laws that are intentionally designed to subvert judicial review and, and to violate those rights.
So, I'll take the classes of defendants one by one and then I'll reflect a little bit on the oral argument. I think starting with judges, there is some language in Ex parte Young that suggests that judges might be difficult defendants, but Ex parte Young was a very different case than this one, in the sense that there was a specific individual in that case, who was enforcing the law. In fact, had attempted to enforce the law in that had been enjoined as unconstitutional. In this case, as Stephen says, you can't identify at this stage, who exactly are the individuals that are going to file these SB8 lawsuits. But what matters for purposes of understanding the role that judges have in enforcing this law, is that state judges are not really acting in their normal adjudicatory capacity when they are presumably hearing SB8 lawsuits because SB8 stacks the decks against defendants that is people sued under SB8 in such a, such a lopsided substantive and procedural manner. For example, it bars defendants from bringing a full Whole Women's Health defense in an SB8 lawsuit.
The cumulative acts resulting from the law have the purpose or effect of posing an undue burden to the right to abortion. It has draconian fee shifting policies, meaning if an individual is sued under SB8 and wins that lawsuit, they can't collect any fees. Meanwhile, if they lose, they can be subject to enormous penalties just starting at $10,000. So the judges in this case, really can't default to their normal adjudicatory rules. The SB8 forces judges to stack the deck against SB8 defendants. These are not neutral adjudicators under the, the manner that SB8 is structured. Also I'll note, as Justice Cavanaugh noted at oral argument, subsequent cases to Ex parte Young have suggested that under certain circumstances judges might take on more of an enforcement role when hearings lawsuits brought under state law. In Shelley versus Kraemer on... That was a case in which the court held that a racial covenant didn't violate the Constitution as applied to private parties until those private parties went into court and used the power of the courts to enforce that racial covenant that, that violated the 14th Amendment. So, that's, that's judges. [Laughs].
Clerks... Again, clerks are I, I completely agree are performing a ministerial duty when they're docketing SB8 lawsuits. But and I agree with Stephen, that they're not trying maybe to strip anyone of any right. But it doesn't matter that they're not trying to strip anyone of any right, they, they are doing so because the chilling effect of SB8, the, the fact that the threat of SB8 lawsuits has prevented essentially outlawed abortion in Texas means that if clerks were no longer allowed to dock at SB8 lawsuits, that chilling effect would be gone. If the court right now were to order clerks to stop that they were not allowed to docket SB8 lawsuits, abortion would resume in Texas as, as it did when in the other case, the district court entered a preliminary injunction. And finally executive officials. The state Attorney General.
So, in Ex parte Young there's, there's some discussion of how the Attorney General by dint of his office itself has a connection to the enforcement of law. I think that that broad principle certainly is applicable here, though, I can see that in Ex parte Young, the Attorney General was in fact the individual who had brought the enforcement case. But the other point that was made by several of the justices, as you mentioned at oral argument is that an injunction against the state Attorney General would necessarily run to all the individuals who are intending to, or in fact, do file SB8 lawsuits because they are effectively exercising the power of the state in filing those SB8 lawsuits. They're private Attorney Generals with no individual interest in the case who are empowered by the Texas Legislature to essentially perform the role of a state prosecutor and go into court and enforce SB8. And an injunction against the state Attorney General could run to those individuals under rules in the Federal Rules of Civil Procedure that allow injunctions to bind agents or people in concert with the Attorney General.
So, so, there are a number of ways that relief could be crafted. My sense which is worth only my, my personal sense from listening to the oral argument, is that the justices seemed most interested in an injunction against the clerks in part because I think that is probably the most straightforward route. And that is the route that the attorney for Whole Women's Health and the other providers explicitly said was the most straightforward route and it wouldn't require necessarily changing any language or, or overruling any prior precedent.
Not that for the reasons I said, I, I don't believe any of the other rulings would necessarily require that either. But my sense is that is probably the way that the court would be most inclined to go, but for the reasons I just explained, I think there's, there's an opening for the court to enjoin any of these classes of defendants that are named in the Whole Women's Health lawsuit.
[00:18:01] Jeffrey Rosen: Thank you very much for that. Stephen, as you listened to the oral argument do you agree or not that the justices might be most inclined out of all the possible defendants to converge on the clerks? If they do that, how big an exception to Ex parte Young would that be? And then step back and help us understand how canonical a precedent is Ex parte Young. It's, it's all based on this notion that you described of sovereign immunity that is rooted in the 11th Amendment, which says the judicial power of the United States shall not be construed to allow citizens of another state to sue a state. But the Supreme Court's expanded that a lot and said citizens can't sue their own state. And then Young created some exceptions to that. So, to the degree that some of this is kind of made up by the court not rooted in the text and history of the 11th Amendment, would, would it be a big deal to create new exceptions to Ex parte Young or, or not?
[00:18:56] Stephen Sachs: So, I think it, it both would have to be a big exception to Ex parte Young and it would be a big deal. So if you look at the language of Ex parte Young, its discussion of judges is the mo... part that's gotten the most play and that sort of scared the justices off from doing anything that would really interfere directly. But it also talks about the machinery of the courts overall, you know, you're not allowed for instance, to sue the members of the grand jury who indicted you because you think that you're actually innocent, or because you think that the law violates the Constitution.
Likewise you're not allowed to, you know, sue the bailiff just because you think that the cause of action that's filed against you is invalid under the law. You can sue those people sometimes when they sort of act on their own hook to violate the law in some way. So if a court clerk refused to docket any filings from people of a certain race or religion, surely you could sue them there would be no problem with that. They don't have some generic immunity. But here, the thing that they're accused of doing is filing a lawsuit and, or, or sorry, docketing a lawsuit that someone else has filed. And that's not a violation of the Constitution, which is what Ex parte Young was really looking for.
We've had many, many cases with private tort suits that arguably violated the Constitution, New York Times versus Sullivan, where you had a southern Sheriff suing the New York Times under a libel law that arguably went further than the First Amendment permitted. Nike versus Kaski involved false advertising law California created that allowed basically anybody who had seen the advertisement to sue Nike and argue that it was false. Shelly versus Kramer indeed was a case where you had private parties litigating about whether a racially restrictive covenant could prohibit African Americans from buying a particular piece of land. And that too, was litigated by lawsuit by the people who wanted to buy the land, and the people who didn't want them to be able to have it. And these private parties went to court and no one thought that the judge was the proper target of the lawsuit, or the court clerk, or the bailiff, or the person who sweeps the floors. None of them have any role in determining what the content of the lawsuit is. They just have the job of deciding whether it's constitutional to enforce this law.
And the answer might well be no. The judge might rule at the end of the day that, "No, you can't bring this lawsuit." As happened at the end of the day in Shelley versus Kraemer. So, the the, the thought that the judges and clerks are the sort of natural target given the absence of some better person under Ex parte Young, I think is rather flawed because the idea behind Ex parte Young is not we have to find some targets, let's pick this person, they seem the best, but rather an actual theory about why the actual person who was being targeted as the defendant had done something in violation of the law and could therefore be sued over it. Ex parte Young might have gotten a little bit over its skis.
And so I think that one reason why the court is unlikely I shouldn't say unlikely, why it might be unwise for the court to expand it, is because Ex parte Young itself is a little bit of a stretch. But to say that sort of well, it was a fiction, so now let's create a bunch more fictions cause all of this is made up anyway, I think would be deeply contrary to the court's doctrines. If you think about the doctrine of sovereign immunity in general, this is a very old doctrine. There are cases from the 1780s before the Constitution was signed, talking about how private persons cannot sue states. And it was thought and argued and debated in the ratification conventions, whether Article Three, by creating a new head of jurisdiction for suits from out of staters against state, oh, sorry, suits between out of staters and states was overriding this general background common law principle that a private person could not sue a state.
And over and over again, folks like John Marshall and James Madison and Alexander Hamilton and James Iredale, talk to other people who are questioning about this. They said, "No, no, no, we're just saying in general, if the court has authority to hear this case between a state and a private person, then it can be brought in federal court rather than state court. We're not changing the rules about whether a private person can sue a state." The Supreme Court went the other way five one in Chisholm versus Georgia. And immediately the 11th Amendment was enacted, saying that that head of jurisdiction and indeed all of Article Three could not be construed to empower the federal courts to hear a suit commenced or prosecuted against a state by a citizen of another state.
So what the court ended up saying 100 years later in Hons versus Louisiana, which was consistent with all of its decisions before that time, was, look, the 11th Amendment patched up one arguable hole in Article Three. It didn't change whether Article Three allowed for suits against states to begin with. So, the fact that an individual who's within a state suing their own state is outside the language of the 11th Amendment, doesn't mean that they actually have a right to sue under Article Three. Article Three just provided a home for these suits if there was personal jurisdiction to force the state in. It didn't say that the court could really do that in a suit brought by a private individual. So all of this is explaining why in, in Ex parte Young, the court was pretty careful not to throw the door wide open to any lawsuit that anyone wanted to bring against a state. Instead, they had a theory kind of an iffy theory, but they had a theory for why the prosecutor as individual was liable and could be sued.
Now, I think Congress under its 14th Amendment powers might be able to codify the result in Ex parte Young, I think Congress under its 14th Amendment powers might be able to, I don't know, maybe even provide some sort of pre clearance regime for suits under SB8, to say that states can't create these vast new tort laws that would allow for you know, giant liability brought by anybody. But I don't think that the courts can do that on their own hook. And so the, the justices are trying to find something in the existing doctrines that would allow them to solve this problem without having to, you know, obviously, start creating a bunch of new rules. And I'm not sure that there's a good loophole for them to, to find their way out.
[00:25:22] Jeffrey Rosen: Thank you very much for that. Miriam, do you agree with Stephen's account of the text and history of sovereign immunity? I remember from law school that my dear teacher Akilah Maher, said that the cases that Stephen mentioned, including the Huns case, were inconsistent with the original understanding of framers like James Wilson, who believed that we the people of the United States became sovereign and repudiated the idea of state sovereignty. That was Wilson who wrote that Chisholm and Georgia case that the 11th Amendment over ruled. I, I remember this from the mists of my law school studies and haven't looked at it much since. But does the constitutional Accountability Center except the accounts Stephen just gave, or do you have a different understanding of sovereign immunity? And does that inform why you think the court should, should be free to allow the suit in this case to proceed?
[00:26:13] Miriam Becker-Cohen: Well, I don't think that the account of sovereign immunity is necessarily inaccurate as a historical matter. I, I think it is a limited account that leaves out important pieces of constitutional history that gave rise to the court's decision to create this fiction in Ex parte Young. And, and that's the whole idea that when the framers came together to, to draft the Constitution, they had been living for years under the Articles of Confederation and dealing with a government that was basically powerless to enforce the supremacy of federal law.
So, when they wrote the Supremacy Clause, they were looking for a fix to that problem, and principles of sovereign immunity aside, I think the animating principles that were driving the creation of the Supremacy Clause, which is the core principle at the heart of the Ex parte Young decision, were that federal courts are to be the front line against attacks on the federal Constitution itself, there were a few ideas for enforcing the supremacy clause that were raised prior to the language of the Supremacy Clause itself. One idea was that the executive branch should be able to basically raise an army and bring physical force to bear upon a state that defied federal law. Another idea was that Congress should have some sort of legislative veto that was James Madison's original idea. But judicial review went out and that is enshrined in the Constitution and enshrined in the Supremacy Clause in Article Three. And so I think those principles are necessary to a proper accounting of what Ex parte Young stands for, and why SB8 should be enjoined under that doctrine.
[00:27:55] Jeffrey Rosen: Stephen, what's your response to Miriam's argument that the, the framers intended federal courts to be the primary defender of constitutional rights? And then tell us about the Texas case where the United States doesn't have to worry about sovereign immunity as you've written. So in that sense, it's a better plaintiff, but its rights aren't an issue. And because you've said that no Texas executive officials enforce SB8 directly the US really wants an injunction to prevent the state judges from hearing those suits, and that faces similar problems to the ones we've been discussing.
[00:28:28] Stephen Sachs: Thank you. So I definitely agree that the framers expected that federal courts when they were operating, would safeguard the federal Constitution. That's why they vested the judicial power both in the Supreme Court and in inferior courts. But only if there were going to be inf- inferior courts. Framers actually didn't agree that there would be. They left that question up to Congress. That's the famous Madisonian compromise. And instead, what they said in Article Six was in the Supremacy Clause, that the Constitution was the supreme law of the land, and that the judges in every state were to be bound their pie. So the assumption was not just that federal judges would ride into the rescue, because they weren't sure there were going to be any inferior federal judges, they were punting that question. What they did know was that state judges would have an obligation in the case that came before them to enforce the federal Constitution in preference to state law whenever the two disagreed.
And that's why if you had one of these private SB8 lawsuits, and there are only a handful pending right now, it would be the duty of a state judge to decide them in accordance with the federal Constitution. That might include in accordance with the views on the federal Constitution expressed by the Supreme Court to which any appeal from that state court would run. I mean, they may have an obligation not to sort of by reversal, by deliberately going against what the Supreme Court has said about the Constitution. But ultimately, their duty is to enforce the Constitution, whatever it says over state law.
And so that's why the defenders of [inaudible 00:30:50] Texas and the, the private plaintiffs would argue, look, the right forum for these questions to be decided, including questions about whether SB8 can constitutionally limit the scope of an undue burden defense, or can constitutionally deprive you of the ability to get attorneys fees in cases of frivolous litigation, is something that the state courts will decide in the first instance. And then if they decide it wrong, you can appeal up to the US Supreme Court. The effort by the United States to sue that followed on the heels of the initial round of litigation in the private Whole Women's Health lawsuit, is never in some ways to short circuit that process by getting an immediate ruling on the constitutionality of the substance of SB8, by having the United States sued Texas.
It's correct that Texas does not, as a state does not have sovereign immunity when the United States tries to sue, it's another sovereign, so it's not a private person. But there's still a question of whether Texas is the right person to sue. So if I have a question about the constitutionality of a law passed by the state of Texas, that doesn't mean that I sue Texas, or that anybody else sues Texas, what it usually means is that I sue the party who purports to act under that law, which is in fact void because it's against the Constitution in a way that injures me. So, that's why normally cases like Shelley V. Kraemer would be litigated bet- between private litigants, not by anybody suing the state. Here, the government's argument, essentially, is that the judges and the clerks and even the private plaintiffs are all in some sense part of the state of Texas or acting on its behalf, and so therefore, a judgment against the state of Texas would bind all of them, and that Texas is the right defendant.
The problem here is that state judges in Texas hear cases against the state of Texas all the time, they grant injunctions against the state of Texas ordering it not to enforce a law. No one has ever suggested that under the Federal Rules of Civil Procedure, that means that once a state court in Texas has issued an injunction against the state of Texas, barring it from enforcing a law, that then the judges can't hear any more cases about it, or that the clerks have to stop docketing the filings. It's understood in those cases, that the judges and clerks are neutrals, they're not on team Texas, they can rule against Texas. And the people who are bound are those who use the executive power of Texas, its executive officials to do things to private citizens, that might then be illegal because they're not shielded by the Constitution.
Likewise, if we think that a law passed by the legislature of Texas is invalid, you don't sue the legislature and order them to repeal the law you sue somebody else who's trying to act under the law and say, "The thing you're trying to do to me is not legal. And the reason is because this law is unconstitutional." So I think the real problem with the US versus Texas lawsuit, is that it's trying to sue Texas as the source of this law, not Texas as litigant. Not the executive branch of Texas that comes in and represents the state in litigation.
[00:33:09] Jeffrey Rosen: Miriam in the constitutional accountability centers brief in the Texas case, you argue that another important case, called Henry V. Debs, is the cornerstone for the modern judicial recognition of non statutory executive power to bring suit. Tell us about that case, which arose out of the Pullman rail strike of 1894 and why you think that it provides authority for the United States to sue Texas in this case?
[00:33:39] Miriam Becker-Cohen: Sure. So the Henry Debs case as you said, arose out of the Pullman strike, which was affecting interstate commerce in the sense that it was preventing people from being able to travel, preventing movement of the mail and severely burdening interstate commerce. And so the Supreme Court held in that case that the United States could enjoin that strike in order to vindicate the public interest in the maintenance of free movement and the principles of interstate commerce enshrined in the Constitution. And in reaching that decision, the court used sweeping language and it was, it was very careful on, if you listen to the oral arguments, you will repeatedly hear the Texas solicitor general trying to cabin the holding of that case, saying that the United States had an interest in the males, had a proprietary interest in the males or that the authority of the United States to sue there was really grounded in statutory authority.
But actually, if, if you read the language of Henry Debs that the court disclaimed those grounds for sue, the court instead said that the United States has a duty to protect the public interest and to vindicate its sovereign interests in maintaining free movement under the Commerce Clause. And because of that, the United States had a right to sue here. And our brief, the Constitutional Accountability Center's brief explains that the, the principles of Henry Debs are, are just as applicable here. We derive three core principles from that case. One is the burden of interstate commerce. Well, clearly, SB8 is burdening interstate commerce because it is forcing women in the state of Texas to cross state lines if they wanna seek abortions by, due to its chilling effect and the fact that abortion is effectively a- available in Texas right now.
And in so doing, it is burdening the rights of pregnant people in adjoining states because those people are now going to clinics and finding those clinics overrun with Texans who have crossed state lines to seek abortion. So, in a similar way, the law is burdening interstate commerce. Similarly, the court in Debs recognized that the United States can't just always enjoin a law in this manner. But what was key was the emergency, the emergency nature, the threat that the strike posed to the rule of law, and, and the emergency on the ground. And the same factors are at play here. We've already talked extensively about how SB8 is an intentional subversion of federal law and federal constitutional rights. So in many ways, even more so than, than the strike in Debs and the situation on the ground is dire. There are women who are unable to exercise their constitutional right to abortion as a result of SB8 and the fact that it has chilled all abortion providers in Texas from providing abortions that they are entitled to do.
And the third point is, and this is sort of a, a slightly more nuanced point, is one thing that the government argued in, in Henry Debs, was that the nature of the strike was almost like a public nuisance, and one thing that makes public nuisances unique is that often individuals, or at least at times, individuals can't sue to stop them because they have no particular unique interest or injury. But the, the public nuisance is causing a generalized harm. And again, the relationship to the SB8 cases direct what Texas has been arguing throughout the litigation, is that individuals don't have the power to sue, that the Whole Women's Health lawsuit should fail. So in this case, the United States too, is stepping in in a situation where individuals have significant barriers to vindicating their individual rights.
Now, to be clear, the United States is not seeking to vindicate the constitutional rights of Texans and General Prelogar made it very clear in oral argument that that is not what this lawsuit is seeking to do. This lawsuit is seeking to vindicate the sovereign interests of the United States itself in enforcing and, and maintaining the supremacy of federal law. And that sovereign interest is akin to the sovereign interest in maintaining the free movement and oversight over interstate commerce that was at issue in Debs. So certainly the supremacy of federal law is no less of a vital or important sovereign interest in this case.
[00:38:13] Jeffrey Rosen: Stephen, you've argued in your blog post that Debs is not an appropriate precedent and have noted that Debs relied on the government's property like interest in nation's highways and waterways. So it was a property interest case. Unpack that more and tell us why in your view, Debs doesn't provide authority for this suit.
[00:38:32] Stephen Sachs: Sure, thing. I, I think Debs doesn't provide authority for the suit for three reasons. The first echoing point that had been made earlier, is that Debs is only about the power of the United States as plaintiff to come in and sue. It doesn't tell you who the right defendant is. So, even if Debs did allow the United States to file a suit inequity making arguments like these, it wouldn't say that Texas is the right defendant. So that would be the first problem for the United States. Think about New York Times versus Sullivan, that was a case where the libel law burdened interstate commerce plenty because it was, you know, chasing northern newspapers out and preventing them from reporting on civil rights protests.
But the United States could not have sued the state that had made the libel law, thus if they wanted to jump in, they would have had to go against the individual sheriff who was filing the libel suit. The second problem is that, as you mentioned the standard doctrine of equity was that you could use equity in the absence of a statute or of some other sort of specific exception to protect a property or, or quasi property interest. Aditya Bamzai and Samuel Bray, have a great article that's come out very recently on Debs and equity.
And they go through this history in great detail and show how, even at the time, the sweeping language of Debs was thought to be sweeping with regard to the property or the quasi proprietary interest that the government had, either in the things that literally owned like the mails, or the, the nation's highways and waterways, which were thought to be sort of a, a quasi public trust of some kind. And that it wasn't just that interstate commerce was being impeded, it was that it was being impeded in this particular fashion. And indeed, if you look at discussions of Debs that occurred after the opinion was rendered by contemporaries Bamzai and Bray describe how they understood the case as a proprietary, a quasi proprietary interest kind of case. They didn't say the people who were around when Debs was decided, didn't say, "Oh, wow, they've just thrown open the door to any interest that the sovereign might have, that it can go into equity in the absence of a statute."
And Congress has created lots of statutes allowing the federal government to sue an equity in lots of ways. And those are really useful. But it didn't throw the door open to any kind of lawsuit. It said Congress is in the driver's seat, except where we've got one of these recognized areas. Maybe Debs was sort of pushing the envelope of what counts as a quasi proprietary interest. But it wasn't sort of breaking with that prior tradition. The other thing to note here, and this is the, the third issue, is that the Solicitor General was not even trying to assert a kind of quasi proprietary interest here. Our argument was that the United States has a sovereign interest in preventing the nullification of federal law by states.
And it's still not clear even that interest, even if it were, in fact, permitted under Debs as a ground for a suit inequity without a statute to authorize it, just clear that that interest is involved here, because what we have is not Texas declaring that a constitutional rule is not in effect in Texas, it's not even declaring that, you know, Roe and Casey can't be counted as law by Texas judges, because if they were trying to do that, there would be clear you know, problems trying to dictate the structure of precedent from the federal courts. Instead, Texas is merely making a new private cause of action on the assumption that Roe and Casey may be wrongly decided. And this is a question that the courts, including the state courts, will have to hash through.
And that happens all the time, every time a state passes a new law to create sort of a test case, to challenge existing precedent, which happens a lot. That is, you know, the, the state is not sort of depriving the federal courts of jurisdiction, they're not ordering state judges to decide in a way contrary to existing precedent. They're just saying, "We think that this practice should be prohibited, and we're willing to have the courts hash it out here in the case of defensive lawsuits rather than offensive pre enforcement ones. So it's, it's not entirely clear that what's going on here is in fact nullification of an existing right. It's true that the courts current precedent suggests that it is, but we need to remember that any rule that allows the United States to sue here, would allow the United States to sue in cases where existing precedent is incorrect, or where the United States is reading that existing precedent is incorrect.
So there's no way that [inaudible 00:44:25] a rule that says the US can sue inequity whenever a state creates a private cause of action that defends the Constitution, and have it only apply in the sort of extreme cases. You know, the court can always write an opinion that says this decision is good for this day and train only. But that doesn't mean that that's what it ought to be doing, or that that's a good use of judicial power.
[00:43:32] Jeffrey Rosen: Miriam, your response to Stephen's claim that this would be an extremely broad power for the court to recognize and also your response to the concern raised by Chief Justice Roberts who said, "I share some of the concerns that have been voiced by my colleagues, you General Prelogar say the case is very narrow, it's rare, it's problematic. But the authority you assert to respond to is as broad as it can be." And he asked for a limiting principle. And General Prelogar said it wasn't limitless, but... What, what is your response to that? And what limiting principles would you recognize in this case?
[00:44:10] Miriam Becker-Cohen: Sure. So I, I guess I, my response is twofold. First, crafting a limiting principle is not a noble thing for the Supreme Court, the Supreme Court crafts limiting principles in cases it hears every day. That's what courts do. They create rules, they interpret laws, they interpret the Constitution, and then they create principles that attempt to limit those interpretations in ways that won't lead to a misreading of what they were essentially trying to say in interpreting those laws. So I'm not particularly bothered by the idea that it could be difficult or tricky to create a limiting principle here, because I think if that's grounds for, for not deciding a case or for, for not issuing relief, then there are a whole slew of cases that the Supreme Court or other courts couldn't provide relief. And related to that, I think you have to look at the flip side of the breadth of the power that concern Chief Justice Roberts that United States was invoking.
And look at the breadth of the power that Texas is, is invoking here. Texas is invoking the power to nullify constitutional rights. If there's no way around that, if courts cannot stop Texas from doing that, then, as I said, when we first started, no constitutional right is safe. It's not hyperbole, because this scheme could be repeated in other states, Florida has already introduced a law similar to SB8, states could introduce laws similar to SB8 affecting other constitutional rights. So when you look at the role of courts as enforcing the federal Constitution and, and as guardians of, of people's rights, the, I think the key question is, what's more damaging? A rule that might end up being overboard, perhaps in some way crafted imprecisely?
I don't think there's a real risk of that, cause the, the court knows what it's doing. But if that were the case you know, is that worse than allowing states all over the country to essentially just go rogue and for there to be no remedy? So, the, the lack of a limiting principle, or the need for one and the complexities in crafting one, are not particularly bothersome to me. In terms of what a limiting principle itself would be.
You know, a- again, as I believe General Prelogar basically said that in situations in which individuals are empowered to enforce a state law, where there are draconian penalties that chill a constitutional right, where essentially, the state has acted in a way to preclude judicial review, when all those circumstances are met, as, as in the case here, then that, that should be grounds for the United States to intervene. And I think that rule would not be a bad one, that a narrow roll of that sort would certainly be appropriate. And it certainly wouldn't occur every day. The United States has not filed lawsuits like this before, as General Prelogar admitted, but that's because SB8 is different than any other law that we've seen before.
[00:47:21] Jeffrey Rosen: Thank you so much for that. Stephen, on the question of limiting principles, what do you think of the one articulated by General Prelogar, the... Just summarize, and then in your extremely clear blog post on limiting principles, you identified four other ones beginning with whenever a state enacts an arguably unconstitutional law enforced by private lawsuits. I won't read all of them, but your final limiting principle is whenever a state enact and arguably unconstitutional law, enforced by private lawsuits with an intent to challenge precedent without a need to show injury and with very heavy penalties, obviously, that's more specific. If the court were to choose a limiting principle, which among the ones you identified, or the one identified by General Prelogar, do you think it might choose?
[00:48:04] Stephen Sachs: Thanks. So, I wanna make a clarification about my concern about limiting principles. The worry is not that the court will make a bad choice, or that the court needs the limiting principle to prevent something else very bad in a policy sense from happening. I agree with you that justices who are inclined to make up new rules also make up new limits on those rules, so that the fact that they're making it up isn't quite as obvious. The problem is that the pro... entire process is unprincipled if you don't have a principle to start with, that explains what your limit is. It's always possible to do that ex post and you know, ad hoc, come up with some patch to say, "Here's why wouldn't change things too much." But if the courts job is not to make up new rules, but to enforce the rules that we already have, then they have to be able to articulate a limiting principle that comes from existing law. They have to be able to say, "Here is why the United States has a right to sue in this very narrow situation, but not elsewhere."
So if we have to jury rig some extremely complicated limiting principle that will prevent the United States from suing in lots of ordinary situations where we would never think the United States has power to sue on its own without a statute, that should tell us that maybe this whole thing is wrong. You know, it's a lot easier to say the United States has the power to sue inequity whenever any constitutional rights is being violated anywhere. That was a position General Prelogar you know disavowed and she was, she was correct to do so. But it's more plausible that the law as it stands, allows for that proposition, than it is that the law as it stands, provides the United States to sue in this confluence are 16 different circumstances and nowhere else.
When it comes to the question of what is the right, you know, list of 16 circumstances. The concern that General Prelogar articulated was essentially that Texas had not only prevented effective pre enforcement review, cause that's all that unusual, as Justice Barrett noted there's no constitutional right to pre enforcement review. The United States doesn't have to have any lower federal courts. So there's no guarantee that you are always going to be able to go to court before a statute is violated to sue in a federal court to prevent any enforcement of that statute. Instead, what General Prelogar articulated was a rule that when the state had closed this all off, and also had made it harder for people to engage in the normal kind of defensive litigation. So if you are sued under SB8, and it's frivolous, and it's entirely meritless, and just done for the purposes of harassment, you still don't get to recover your attorneys fees from the other side, even though any other litigation in Texas involving any other frivolous or harassing lawsuits, you would get those attorneys fees back.
That's a real difference. And that's something that actually affects party's ability to defend themselves under the law, because you can have anybody asserting completely frivolous, you know, pseudo constitutional claims and taking your money under SB8 because you have to pay for your own attorney and you can't get it back the way you could for any other rights. I think there's a fair argument that's an unconstitutional abridgment of the right to abortion if such a right exists. If there is a right in the Constitution, then you a state can't burden it by letting people sue you frivolously when they wouldn't be able to do it in any other circumstance. But that is an argument that could be raised in the defense of litigation. So, if someone sues you, you say, "This is frivolous, I want attorneys fees." If the court says no, you can't have them under SB8, you say, "That's unconstitutional too." And then you appeal that argument all the way up to the Supreme Court.
So I think that General Prelogar's proposed limiting principle really shows why there is no ground for pre enforcement review. This is a, she's articulated, very clear reason why SB8 should be concerning to us. Whatever one thinks about the right to abortion. But she hasn't articulated a rule that sort of proves that therefore the United States can sue. I, I worry that the inference here is something must be done, this is something, therefore this must be done. And normally when the question is how do we craft some complicated jury rigged rule to capture only the cases we want and none of the cases we don't, that's what we have legislatures for. That's what we have Congress for. That's what they have the 14th Amendment enforcement power under Section Five for. And there if we, if we need to deal with the, the nitty gritty of the cases, have the legislature do that, it doesn't mean that the court has the right to do that on its own hook.
[00:52:42] Jeffrey Rosen: Thank you so much for that. Well, it's time for closing arguments in these extremely complicated and extremely important cases. Some of the best writing advice I ever got was from an editor years ago who said, "Write it like you're telling it to someone over dinner." So, that's what I'm gonna ask you to do to Are We The People friends. In just a few sentences concisely and clearly as possible as if you're talking to Are We The People friends over dinner, tell us why these two challenges to the Texas abortion law, SB8 are important and how you think the court should decide them? And Miriam, the first intervention is to you.
[00:53:23] Miriam Becker-Cohen: Sure. Well, I'll, I'll keep this brief. And I'll just start with some words that Justice Kagan used during the oral argument, which is that Texas has attempted to find the chink in the armor of Ex parte Young and exploit it. if states are permitted to nullify federal constitutional rights, simply by finding loopholes in decisions that they think they can exploit, and then insulate those rights from constitutional review, no constitutional right is safe. The courts have the power to engage in judicial review of these cases under the Ex parte Young doctrine and the Whole Woman's Health case, and under Section 1983, which allows those plaintiffs to come into court and sue these individuals who these classes of Texas officials who are critical to the enforcement of SB8 indeed, if any one of those classes of defendants were stopped in the way that the Whole Woman's Health petitioners request, SB8's chilling effect would be gone and abortions would be available again in Texas as the Constitution mandates in United States versus Texas.
This is not a usual case in the sense that the United States does not sue it states every day to enjoin laws. But that's because SB8 is not an ordinary law. And quite frankly, the semantics that Texas has invoked to try to defend against this law are effectively boiled down to its argument that we're smarter than you, we came up with a way to eviscerate Roe and Casey without challenging those precedents directly. And the United States has a duty and a role here to say, "No, you're not permitted to do that. That's not what the Constitution says." And for that reason, as a matter of law, both suits should be permitted to proceed whether that's necessary is, is another question, but as a matter of law, that's the Constitutional Accountability Center's perspective.
[00:55:27] Jeffrey Rosen: Thank you very much for that. Stephen, the last word is to you. Tell Are We The People friends why these cases are important, and how you think the court should decide.
[00:55:37] Stephen Sachs: Thank you. These cases are important because they involve very deep issues of federal courts law, and very deep issues of constitutional law together. And they pose a question of how the courts can defend one without breaking the rules of the other. I remember a case I once saw clerking when someone had referred to a law as a technicality. And the judge responded, a technicality is another word for a rule of law under which you lose, a rule of law under which you win is a cornerstone of justice. And I think what that really shows, is that things that people think of as just technical corners of federal courts law, a chink in the armor sort of, you know, ingenious scheme, are really just other ways of describing that courts have a lot of rules already on the books that constrain what they do. Their job is not to go forth in search of monsters to destroy and identify parts of the Texas Health and Safety Code that violate the Constitution and erase them out of the statute book.
Their job is to decide cases between particular people that are properly framed for their resolution. I think that what SB8 is doing is very significant. I think that it deserves serious attention from Congress. I think that, you know, we're gonna need real legislative attention to the strategy used with respect to other rights in the future, but none of that entails that it's a judge's job to make up some new law to solve even what might seem like a very pressing problem. And I think that's what the court is being asked to do here.
[00:57:14] Jeffrey Rosen: Thank you so much, Miriam Becker-Cohen and Stephen Sachs for a detailed, rigorous and illuminating discussion of the Texas abortion cases. Miriam, Stephen, thank you so much for joining.
[00:57:29] Miriam Becker-Cohen: Thank you.
[00:57:30] Stephen Sachs: Thank you for having us.
[00:57:36] Jeffrey Rosen: Today's show was produced by Jackie McDermott and engineered by Greg Sheckler. Research was provided by Michael Esposito, Chase Hanson, Sam Desai and Lana Ulrich. We the People friends, please rate, review and subscribe to We The People on Apple Podcasts and recommend the show to friends, colleagues or anyone anywhere who is hungry for a weekly dose of constitutional illumination learning and debate. And always remember that the National Constitution Center is a private nonprofit, we rely on the generosity, the passion, the engagement, for devotion to educating yourself about the Constitution that you have shown by listening to today's episode. And it would be so great to have you support our mission by becoming a member at constitutioncenter.org/membership, or give a donation of any amount to support the work including this podcast at constitutioncenter.org/donate. On behalf of the National Constitution Center, I'm Jeffrey Rosen.
