Gavin Newsom Joins the Freakout over the Texas-Abortion-Law Decision

T he Supreme Court’s decision Friday in the Texas-abortion-law case was, as I have detailed and our editorial discussed, a fairly modest application of traditional rules to a novel situation. And yet, there has been a predictable freakout from the usual sources on the left.

Mary Ziegler’s Atlantic piece, “The Court Invites an Era of Constitutional Chaos,” gives a taste of the outrage:

The Court’s decision today almost invites other states to imitate Texas’s approach, creating the possibility for more constitutional chaos—and not just on the issue of abortion. . . . If no state official enforced S.B. 8, there would be no way to test it in federal court. Yes, there could be state cases, but those would not stop all suits against abortion providers and aiders and abettors—doctors would have to raise a constitutional defense each time they were sued, rather than settling the matter once and for all. In the meantime, providers would have to put out constant fires. Many would refuse to perform abortions after six weeks at all. . . . Providers will be in and out of court—and will have to rely on state cases. A clean solution that would end S.B. 8 once and for all may not be possible.

With its decision, the Court has handed states looking to nullify other constitutional rights a road map: Write a law like S.B. 8 with a few tweaks, and the Court’s majority may sign off on it. The only question will be whether Democrats as well as Republicans take up the Court’s veiled invitation to play constitutional hardball. . . . Allowing states to perfect the S.B. 8 model will encourage constitutional anarchy.

Mark Joseph Stern’s piece in Slate is similarly breathless, with a headline that claims the decision is a “disaster for constitutional rights” and a subtitle that claims the decision gives “states a road map to nullify fundamental liberties”:

The upshot of Friday’s decisions is this: Abortion providers can now ask U.S. District Judge Robert Pitman to block S.B. 8. Pitman will swiftly grant their request by issuing an injunction against “executive licensing officials” tasked with enforcing the law, a decision that should stand in the 5th U.S. Circuit Court of Appeals. Texas’ clinics will presumably begin providing abortions again, though they are not fully protected from civil suits. . . . Other states may still pass S.B. 8–style laws that empower vigilantes to sue abortion providers, as long as they tweak the language to comply with Friday’s decision. . . . It’s not clear that an injunction against licensing officials would stop bounty hunters from filing lawsuits under S.B. 8. . . . The four other justices see S.B. 8 as a direct threat to the Supreme Court’s authority to “say what the law is” by shielding constitutional liberties from state infringement. It seems the majority is troubled just enough to carve a path around some of S.B. 8’s blockades—but its solution is a ticket good for one ride only. . . . Friday’s decision has alarming ramifications for the principle that states may not undermine fundamental rights by outsourcing enforcement to bounty hunters. There is nothing in the ruling to stop Republican legislators from deploying a refined version of Texas’ strategy. To the contrary, these legislators now have a blueprint for keeping their unconstitutional laws out of federal court indefinitely. The majority has disabled a time bomb—then given Texas instructions on which wires to reconnect.

Neither of these writers gives even an instant of thought to the question of whether the Constitution requires federal courts to enjoin unconstitutional state laws in advance. (It doesn’t; it says nothing on the topic, and pre-enforcement review was uncommon for over a century after the Constitution’s enactment.) Also, neither of them expresses any interest in the doctrines and precedents upon which the Court drew. To say that the Court’s decision is “a ticket good for one ride only” is to ignore the actual rules of law in this area, which have traditionally allowed suits against executive officials to stop them from exercising executive powers (as the Court did here) while disallowing suits against state-court judges and clerks (again, as the Court did here). Finally, the idea that there could be constitutional violations without a remedy in court did not horrify either writer when the Supreme Court said in June that nobody had standing to challenge the constitutionality of the Obamacare health-insurance mandate. (Stern, in fact, celebrated that decision).

Their fundamental premise is wrong. Stern worries that the lack of pre-enforcement review means nothing will “stop bounty hunters from filing lawsuits under S.B. 8.” Ziegler says the need to “raise a constitutional defense each time they were sued” means that “providers would have to put out constant fires.” But in either case, this is a temporary condition. The instant the first lawsuit is filed, the clock starts ticking before there is a decision on the defense of unconstitutionality, and that decision becomes a precedent. As the case moves up the appellate system, those precedents become binding. Eventually, a case will produce a petition to the Supreme Court. Evading pre-enforcement review does not guarantee the successful evasion of judicial review — or even federal court — “indefinitely.”

Then there is California governor Gavin Newsom, who won plaudits from progressives for the emotional satisfaction of his promise to allow private citizens to sue “anyone who manufactures, distributes, or sells an assault weapon or ghost gun kit or parts in the State of California” for “at least $10,000 per violation plus costs and attorney’s fees.” Leave aside the imprecision of those terms and whether any of them really involve anything that is not already banned in California. Newsom seems to think that the Texas abortion decision means that no court will ever rule on his move: “If states can now shield their laws from review by the federal courts that compare assault weapons to Swiss Army Knives, then California will use that authority to protect people’s lives, where Texas used it to put women in harm’s way.” Does Newsom think that the California plaintiffs’ bar has the restraint to avoid filing such lawsuits? Because the history of the bar in California suggests otherwise, and a law like this can only evade judicial review so long as nobody actually files a lawsuit under it. Does Newsom think such a law will change anything for gun manufacturers? The gun industry has lived for years in a world where federal courts rarely intervened on its behalf, and even now, the Supreme Court often turns away appeals of decisions allowing unconstitutional restrictions on the Second Amendment.

Deputizing private citizens with no stake in a case to enforce the law is, as a rule, not a good idea. It should, at most, be used in cases where more conventional enforcement of the law has been sincerely tried and persistently evaded. But the notion that the Texas-abortion-law decision has created some sort of law-free zone by requiring these cases to be brought in court before they are ruled upon is hysterical nonsense.