Opening briefs of all parties and amici are due at 5 p.m. today in United States v. Texas (the DOJ case) and Whole Woman’s Health v. Jackson (the abortion providers’ case) and will be available at the linked pages. When I last checked, the only party brief that had been posted is that of intervenor individuals supporting Texas in the DOJ case. Here is its introduction (some citations omitted):
While the United States complains about the supposed constitutional infirmities in SB 8, its own lawsuit violates the constitutional separation of powers. The Fourteenth Amendment empowers Congress to “enforce” its requirements “by appropriate legislation,” and that means it is up to Congress to decide whether and to what extent lawsuits should be authorized against those who violate the Fourteenth Amendment. See Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 (2014) (“[A] court cannot apply its independent policy judgment to recognize a cause of action that Congress has denied”). Congress has, for example, enacted a statute that authorizes individuals to sue state officials (but not state governments) that violate their constitutional rights. See 42 U.S.C. § 1983. But Congress has never authorized the United States to sue a state whenever it violates the constitutional rights of its citizens, or whenever it violates constitutional rights in a manner that cannot be redressed under 42 U.S.C. § 1983. The notion that the executive may unilaterally fix the “gaps” that it perceives in section 1983 by suing states that violate the Fourteenth Amendment is incompatible with the Amendment’s decision to vest the enforcement authority in Congress—and any flaws that may exist in a congressionally created remedial scheme must be fixed by Congress, not by unilateral executive action. See United States v. City of Philadelphia, 644 F.2d 187, 200 (3d Cir. 1980) (refusing to recognize an implied right of action for the federal government to sue over Fourteenth Amendment violations because “[s]ection 5 of the fourteenth amendment confers on Congress, not on the Executive or the Judiciary, the ‘power to enforce, by appropriate legislation, the provisions of this article.’”). The President must execute the laws in accordance with the enforcement procedures established in the law; he does not get to create new mechanisms for enforcing federal legal obligations. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587–88 (1952).
The United States’ lawsuit is also plagued by the same problems that confront the abortion providers’ lawsuit in Whole Woman’s Health v. Jackson, No. 21-463. A federal court cannot “enjoin” SB 8 itself; it can enjoin only the “individuals tasked with enforcing laws.” But the State of Texas does not “enforce” SB 8; it merely allows its judiciary to adjudicate private civil lawsuits brought under the statute. That is not a ground on which an Article III case or controversy can exist between the United States and Texas. See Muskrat v. United States, 219 U.S. 346 (1911).
The federal judiciary is also powerless to enjoin or prevent a state court from hearing a lawsuit. See Ex parte Young, 209 U.S. 123, 163 (1908) (“[T]he right to enjoin an individual, even though a state official, from commencing suits . . . does not include the power to restrain a court from acting in any case brought before it, either of a civil or criminal nature . . . . [A]n injunction against a state court would be a violation of the whole scheme of our Government.”). That remains true regardless of whether an individual is suing a state-court judge under 42 U.S.C. § 1983, or whether the United States is suing the state (or its judiciary) as an entity. Federal courts must presume that state judges will respect federally protected rights when deciding cases, and injunctive or declaratory relief that bars the state judiciary from even hearing a lawsuit is incompatible with that presumption. More importantly, an injunction may be used only to restrain unlawful behavior, and a judge does nothing illegal by presiding over a lawsuit that has been filed in his court—even if the lawsuit were seeking to enforce a patently unconstitutional statute. A judge will never violate the Constitution merely by adjudicating a dispute, so a court cannot restrain another court from hearing a case that is brought under an allegedly unconstitutional law.