Friday, September 10, 2021
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!