Why is avoidance of judicial review of the Texas abortion law and other future US state laws so concerning to the US department of justice?

Question

From CNN's video coverage of US Attorney General Merrick Garland announcement of its lawsuit against the state of Texas:

Q: ...several GOP lawmakers who said that they will follow Texas’ lead, and I was wondering if you expect DOJ to be involved in similar actions against other states? Like would it be a leap to say this could be one of several similar actions?

A: Well as I said in my remarks, the risk here, the greater risk here, the additional and further risk here is that other state will follow similar models, with respect to not only this constitutional right, but theoretically against any constitutional right, in any other state.

So if another state uses the same kinds of provisions to deprive its citizens of their constitutional rights, and in particular to deprive their citizens the ability to seek immediate review, we will bring the same kind of lawsuit.

Question: Why is avoidance of judicial review of the Texas abortion law and in the future to other US state laws so concerning to the US department of justice? What is the nature of this "greater, additional and further risk"?

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Further background:

This September 1, 2021 US Supreme court document contains three dissenting opinions in the court's decision not to block the Texas law. Two of them call out an attempt by the law to delay, avoid, or insulate itself from judicial review.

Justice Sotomayor: Because the Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent.

[...] Instead, the Court has rewarded the State’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the Court’s precedents, through procedural entanglements of the State’s own creation.

Justice Kagan: The Court thus rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State’s behalf.

Answer 1

In WWH v. Jackson the Court majority concludes that the Texas law is de facto immune to the power of judicial review, for entirely procedural reasons.

They argue that the Court's power of injunction can only be applied to persons because non-person things don't take actions of their own and so cannot be made to stop taking actions... because they don't ever take any to begin with.

The Texas law in question specifically goes out of its way to make clear that at no point is anyone in the Texas government going to enforce the law or in any way act on the law, and as a consequence, they cannot be named defendants because they have taken no material act for which the court could supply relief.

So if no one enforces the law, why do we care? Because it's not true that no one enforces the law, the common citizens of Texas are trying to de facto enforce the law via privileged civil complaints that are legally immune to penalties or consequences usually given out for frivolous lawsuits - basically they stand to win $10,000 and no meaningful financial risk to themselves.

Since the Court has declared that there basically isn't a legitimate person against whom a complaint could be lodged, Texas' law becomes unstoppable.

But because Roe v. Wade is still otherwise 'good law', there exists a constitutional right to access to abortion, a right which is being de facto infringed upon.

The Department of Justice, along with a bunch of other people, are crying, "HAX!!!" And not without merit. Also of concern for DoJ: citizens enforcing the laws, without training or even meaningful checks against their power, instills and inspires vigilantism, which is dangerous to the public safety, which DoJ is charged to protect.

If the law wasn't likely to spread beyond Texas, it would be harder for DoJ to make a move, but the declaration that a law can escape judicial review on procedural grounds (SCOTUS' own doctrine that holds "The Constitution is not a suicide pact" notwithstanding, apparently) essentially makes the entire foundation of law in the United States subject to the same treatment if only the authors of laws are clever enough. It's an obviously intolerable condition for the legal system.

Fortunately, this will be back in front of SCOTUS' main docket pretty quickly, since if someone sues the Federal government... let's say the Department of Justice and/or Merrick Garland in his capacity as Attorney General? The court that hears that case is inevitably SCOTUS. Sooner or later, probably sooner, Roe is getting its day in court.

Answer 2

Question: Why is avoidance of judicial review of the Texas abortion law and in the future to other US state laws so concerning to the US department of justice? What is the nature of this "greater, additional and further risk"?

Quite simply, you could attack any right using the same system. That's the problem. Anything from supporting the Yankees in Massachusetts to worshiping at non-Mormon churches in Utah to owning a gun in California could be made incredibly difficult in a similar way.

The problem with the lawsuit, however, was that it couldn't work. There was no evidence that the judge sued would enforce it, and he was the wrong person legally to sue. A judge as a party in a lawsuit cannot defend the law, or they would be forced to recuse, thus they do not have adversity required in Article III.

Why was a lawsuit tried that couldn't work? Because the person that is normally sued (yes, there is basically a standard practice for abortion rights lawsuits in Texas) also didn't have adversity: The DA. The law specifically bans anyone in the Texas government from suing, so it can't be challenged in the normal way. So who do you sue? Government agents are right out, so is the judge (until they do rule against Roe). Texas itself?

Nope, you couldn't sue the state from outside the state because of sovereign immunity, which states do have versus citizens in federal court. If you lived in Texas, then that would be a state court case not federal, which I believe the law also guards against. The (hopeful) solution is to have the US sue Texas, which will hopefully be able to navigate standing, as they don't have to deal with the 11th amendment. But if the US didn't sue, I don't know who could.

As for comparing this to lynching because of its use of private citizens, that was taken from many accepted laws, including environmental and consumer protection laws. See for example CEQA in California. I don't think that is a valid comparison, unless one dislikes all of these other laws that use private attorney generals. The novel and problematic thing about this law is that it uses private attorney generals to avoid judicial review, not the empowering of private citizens.

Answer 3

Back in the late 19^th and early 20^th centuries an assortment of citizens groups in the deep South — most notably the Ku Klux Klan — used intimidation, violence, and extrajudicial killings to enforce oppressive segregationist policies and deprive African Americans of their newly-won rights as citizens. Local and state governments turned a blind eye; African Americans who tried to challenge laws and ordinances were set upon by private citizens (often masked, or in mobs that prevented easy identification); federal and constitutional guarantees were circumvented because they were being violated by anonymous private citizens, not accountable government agencies.

The difference between a posse and a lynch mob is that members of a posse are sworn deputies subject to the rules and regulations of the law; members of a lynch mob take the law onto themselves and are subject to no restrictions.

Any law that is written specifically to avoid judicial review by pushing enforcement onto private and largely unaccountable citizens is expressly trying to encourage a lynch mob mentality, one in which the constitutional rights of citizens can be violated with impunity. Should this Texas law stand, so that individual citizens are encouraged to levy summary judgment against anyone, at their own discretion and with effective immunity from reprisals. what's to stop other states from (say) writing laws that empower citizens to 'deal' with homeless populations, registered sex offenders, drug users or dealers, or even unwanted minorities?

Note that we already have the beginnings of such laws in 'castle doctrine' and 'stand your ground' laws, which allow the use of deadly violence at the mere subjective impression of threat (and which have arguably been applied with a deep bias against women and minorities). We could easily end up with laws that reward armed citizens for the prevention or punishment of perceived crimes, with predictably terrifying results. It's not surprising that Justice wants to nip this in the bud before it has a chance to bloom.

Answer 4

One of the basic principles of American democracy is checks and balances, and central to this are three branches of government, legislative, judicial, and executive, that check each other's powers. The purpose of this bill is to produce a chilling effect on the provision of abortion, and while the actual lawsuits would have to go through the courts, at the moment abortion providers have shut down with no recourse through the courts.

Moreover, while this particular bill was signed by the governor, it's not inconceivable that even if he had vetoed it, the legislature could have overridden his veto. Normally, even when the legislature overrides the veto of the head of the executive branch, the executive branch can still effectively veto the law by refusing to enforce it. But with this bill, lawsuits are initiated by private citizens, not the government, so the executive branch is cut out of the enforcement.

So the precedent established by this bill is that the legislature can intimidate people into not exercising their constitutional rights without any oversight from the executive or judicial branches. This flies in the face of the basic principle of checks and balances. It means that the legislature can take away any rights they want without the other branches challenging them.

Not only can we think of a wide variety of hypothetical bills, such as one saying that people can be sued for criticizing the government, that would take away rights, but there are existing examples of rights that the legislature has expressed a desire to take away. For instance, until 2004, one could be charged with a felony in Texas for engaging in homosexuality, and the only reason this is not the case anymore is because the Supreme Court declared it unconstitutional. If Texas gets away with SB8, there are lots of people who would like a similar bill going after gay people. Alabama only recently removed a requirement that one declare a belief in God to vote, and did so only as a result of a lawsuit; will they pass a bill allowing random citizens to sue any atheist who votes? What about requiring school children to recite the pledge of allegiance or take religion classes? There is a lot of oppression that doesn't exist only because of the courts.

Answer 5

Because the Texas anti-abortion "law" is defined using language that sets it up as completely beyond challenge by any legal authority of the United States, including the Supreme Court.

The ramifications of this should be obvious: if any state can do the same, you no longer have United States bound by a single legal system - you have anarchy. You no longer have a union.

Almost certainly though, this particular law is a red herring; the GOP is entirely expecting it to fail. It's merely a vehicle to shift the Overton window so that the next time the GOP introduces a similarly discriminatory, misogynistic law, their supporters and mouthpieces will use "but it's not as bad as the Texas one" as an "argument" for why that law should be passed. (It's also yet another vehicle for the GOP to claim that they're being discriminated against by the evil Democrats, which they do all the time anyway.)

Answer 6

Basically this is a case of viewing with alarm, which both parties have become enamored of.

The Supreme Court only hears cases where someone can claim actual harm, which can be remedied.

First off, the law is of course an attempt to eliminate abortions. It attempts to do that by making it fiscally dangerous, with the danger coming from a 3rd party not the state.

If the law allowed the State to cause the fiscal risk, then it could go immediately to the Supreme Court, on the grounds that a State doesn’t have to actually act on a law for it to be damage. For example if a State passed a law saying that people named John were not entitled to a trial in that State, I could appeal to the Supreme Court for an injunctive relief, even if I wasn’t on trial or even living in the State — the mere fact that the law applies to me affects me. On the other hand, if a law said trials for drunk driving were to be delayed for 3 years, I couldn’t because I haven’t been harmed.

All of that means that this law is not beyond judicial review, but it has been crafted so that it can’t be reviewed until after someone tries to use it. It can and probably will make it to the Supreme Court.

In the meantime, those that are opposed to its purpose, are wringing their hands and whining that it’s the end of the world as we know it.

It’s not, it’s just a bad law that will almost certainly get overturned.