Among the many oddities in the oral arguments on Monday in the Texas Heartbeat Act cases was the suggestion by Justices Sotomayor and Kagan that an injunction against the Texas attorney general (in the Whole Woman’s Health case) would somehow operate against private individuals who would seek to enforce the Act. (See transcript at 65-72.) Never mind that the state attorney general has no authority at all over such individuals. Never mind, further, that the abortion providers have sued only one private individual—an individual who has attested that he has no intention of suing under the Act—and that it has not proposed that the district court certify a class of such individuals. Never mind that the plaintiff abortion providers, for good reason, never made such an argument.
As Justice Kagan explains it, she builds on the imagined predicate that an injunction against a state attorney general would also operate against state district attorneys in a state system like Texas’s in which the attorney general has no authority over the district attorneys. But this predicate is manifestly unsound. The federal constitutional model of the unitary executive plainly does not apply in the states: many or most of them have an attorney general who is separately elected and who does not answer to the governor. It’s likewise permissible for a state to structure its prosecutorial system in a non-unitary way, in which district attorneys don’t answer at all to the attorney general. That evidently is what Texas has done. In such a system, it makes no sense to think that a plaintiff can sue the attorney general to obtain relief against an enforcement action by a district attorney.
In short, contrary to what Kagan appears to presume, there is no mystical relationship between a state attorney general and state district attorneys that transcends how state law defines that relationship, and there is likewise no mystical relationship that plausibly can be said to exist between the state attorney general and private individuals who would sue to enforce the Texas Heartbeat Act. (And that is true even if one adopts the misconception that such individuals are acting as private attorneys general deputized by the state, as the attorney general has no authority over them.)