Oh Hey Looky Here, It's UNITED STATES VS GODDAMN TEXAS
Remember last week, when Texas and the federal court system took a shit all over women's rights and then flushed them both down the toilet? And the government did basically nothing but issue angry press releases?
Well, looks like my government is finally doing something about it!
Yesterday, the DOJ sued Texas to stop enforcement SB 8, which bans basically all abortions by, as the DOJ puts it, "deputiz[ing] private citizens ... to serve as bounty hunters."
Correctly pointing out that "Texas enacted S.B. 8 in open defiance of the Constitution[,]" the United States asks a federal court to find that the law is unconstitutional under the Fourteenth Amendment's Supremacy Clause, preempted by federal law, and a violation of intergovernmental immunity. The DOJ is seeking a declaratory judgment that the law is some illegal bullshit (paraphrasing), and for it to be enjoined.
As the lawsuit lays out,
It takes little imagination to discern Texas's goal—to make it too risky for an abortion clinic to operate in the State, thereby preventing women throughout Texas from exercising their constitutional rights, while simultaneously thwarting judicial review. Thus far, the law has had its desired effect. To date, abortion providers have ceased providing services prohibited by S.B. 8, leaving women in Texas unacceptably and unconstitutionally deprived of abortion services. Yet, despite this flagrant deprivation of rights, S.B. 8 remains in effect.
The legal issues
The jackasses who drafted this bill were very clear that they were purposefully crafting it in a way they hoped could avoid judicial review altogether. Because who needs "rights," anyway?
It's all stupid bullshit, but because we live in the dumbest timeline, far too many people are taking it seriously.
Who to sue
Lots of Very Smart People are taking the ridiculous argument seriously that no one can sue over this law because the state just created the abortion bounty hunters, but the abortion bounty hunters aren't technically arms of the state. In pretending like this is a good faith argument, all of these Very Smart People are making it seem like this is a close call. It's not. It's really, really not.
While the state deputizing abortion hunters is an impressive privatization of fascism, that certainly shouldn't make it unchallengeable. Even John Roberts wrote in last week's dissent, "The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime."
DOJ says "fuck that." (Paraphrasing again.)
The United States has the authority and responsibility to ensure that Texas cannot evade its obligations under the Constitution and deprive individuals of their constitutional rights by adopting a statutory scheme designed specifically to evade traditional mechanisms of federal judicial review. The federal government therefore brings this suit directly against the State of Texas to obtain a declaration that S.B. 8 is invalid, to enjoin its enforcement, and to protect the rights that Texas has violated.
The "it's fine because pRiVaTe aCtOrS" argument also entirely ignores the role of the fucking legal system in enforcing judgments. The claim is that it's totally fine to allow for the state to use private citizens to destroy the US Constitution. Even though the state was who enacted the damn law. But, umm, who will actually be enforcing judgments, again? The courts. And what are courts? Arms of the goddamn state.
That constitutional rights apply in court enforcement of judgments isn't even novel. In defamation and libel lawsuits, the First Amendment applies, even though the plaintiffs aren't state actors. You know why? Because courts, which would enforce any judgment, are state actors. In the same vein, courts can't enforce racist covenants. And why is that? Because courts are state actors.
The DOJ alludes to this in the complaint, noting that "Texas has mandated that its state judicial officers enforce this unconstitutional attack by requiring them to dispense remedies that undeniably burden constitutionally protected rights."
The DOJ also argues that SB 8 is effectively deputizing abortion bounty hunters as "agents" of the state, and therefore it can sue the state directly. After all, "[t]hese individuals are also state actors to the extent they are significantly involved in conduct that would be unconstitutional if engaged in by the State itself or Texas has sanctioned their conduct."
"No one can be sued to stop this incredibly unconstitutional law" is, simply, not a legitimate argument. It's just not. Sure, it looks like at least five tyrants on the Supreme Court are ready to roll with it, but we already know this Court is nothing but the judicial branch of the Republican Party.
And, like Garland noted at his press conference announcing the suit, "This kind of scheme to nullify the Constitution of the United States is one that all Americans – whatever their politics or party – should fear." I agree. It's absolutely fucking insane that any court would accept the argument that literally no one can sue to protect their constitutional rights, as long as the autocracy is privatized.
If the Supreme Court adopts the reasoning that bounty hunters don't count and no one can sue, (a) fuck them, and (b) it is fucking on. Let's take this to the next step. I want blue states to start cranking out bounty hunter laws of their own. Bounty hunters for people who own firearms. Bounty hunters for people who refuse to wear masks. Bounty hunters for anti-vaxxers. Bounty hunters for Trump voters. Bounty hunters for all Republicans!
Hell, I think we should pass a law to ban all ejaculation that doesn't happen pursuant to a notarized agreement to procreate. If the aim is really to stop abortion, not just control pregnant people, stopping ejaculation sounds like a pretty damn effective way to do it.
If the state can ban our constitutional rights simply by paying thugs to do their dirty work for them, we effectively have no constitutional rights at all.
Fun legal theories
The complaint also asserts some pretty fun legal arguments that aren't typically seen in these kinds of cases. It uses the Commerce Clause to argue that the law "forces women who wish to obtain these services to travel out of Texas to other states in order to exercise their constitutional rights and it hinders businesses and non-profits engaged in this commercial activity."
States don't get to tell the feds what to do; the doctrines of preemption and intergovernmental immunity, as well as the Fourteenth Amendment, make this a big no-no. States don't get to prohibit the federal government from doing things. Or, to put it in a way Republicans may understand: That's not how federalism works, dummies.
Does anything even matter?
So listen. I appreciate this suit and I'm so happy to see someone in government finally, actually do something to try to stop it. And I like the complaint. But — you knew there was a but, right? — (a) I would like to see a whole lot more more happening to stop this insanity; and (b) it probably doesn't even fucking matter, anyway.
The good news: US v. Texas has been assigned to Judge Robert Pitman, an Obama appointee who was ready to enjoin SB 8 before it went into effect.
The bad news: All the appellate courts. The Fifth Circuit has been garbage for a very long time and is continuing that proud tradition to this day. Oh, and our Supreme Court is full of fascists and religious oligarchs in training.
As the Supremes showed us just last week, they are pretty much ready to accept any bullshit argument that lets them take rights away from women and pregnant people. At least five justices demonstrated that they're willing to allow pretty much anything when it comes to controlling women and pregnant people. And those five votes are all they need to bring the country back to the time of unsafe, back alley abortions.
So it doesn't even matter how good of a decision the DOJ gets; the appellate courts can just stay it until SCOTUS gets around to overturning Roe in Dobbs v. Jackson Women's Health Organization next summer.
We have an incredibly narrow window of opportunity, here. It is almost certain that, this time next year, Roe will be gone, and abortion will be criminalized in states all around the country. And who knows how many millions of lives will be ruined when that happens.
We need radical action or we will be living in a Handmaid's Tale-style dystopian hellscape.
This suit is great, but it's only one small step.
Here's the DOJ's complaint:
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