In its brief in United States v. Texas, the Department of Justice repeatedly asserts that its lawsuit is warranted in order to “halt[] Texas’s ongoing nullification of this Court’s precedents” on abortion. Indeed, the brief uses nullification or its cognates more than thirty times. As if it were arguing to the Warren Court—for which every problem invited an adventuresome judicial solution—DOJ distorts or ignores precedent after precedent in light of this supposed nullification threat.
Set aside that state courts in Texas are able to decide challenges to the constitutionality of the Texas Heartbeat Act. DOJ never acknowledges, much less confronts, the complete answer that Texas and its intervenors have provided to its nullification claim: The Constitution vests Congress with the specific power “to enforce [the Fourteenth Amendment] by appropriate legislation” as well as the general power to regulate the jurisdiction of, and remedies available in, federal courts. Congress has the power to authorize lawsuits by the United States to enforce abortion rights under Roe and Casey (as well as under the other Supreme Court precedents that DOJ trots out in its parade of horribles), but Congress has not exercised that power. As intervenors point out:
Congress is actively considering legislation that would preempt SB 8 and authorize the United States to sue states over their abortion laws, and this bill has already passed the House of Representatives. The executive’s impatience with the progress of this bill does not allow it to sue Texas unilaterally, and neither the United States nor this Court can invoke “equity” to create a novel cause of action that Congress has (thus far) failed to provide.
In short, DOJ’s nullification argument has things backwards. As Justice O’Connor complained decades ago (in her dissent in Thornburgh v. ACOG (1986)), “no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.” It is DOJ that is demanding that the Court nullify longstanding and well-established rules, doctrines, and precedents. These include:
- It is up to Congress to decide whether and to what extent lawsuits should be authorized against those who are alleged to have violated the Fourteenth Amendment. U.S. Const. 14th Am. § 5; Alexander v. Sandoval (2001).
- There is no constitutional right to pre-enforcement judicial review. Thunder Basin Coal Co. v. Reich (1994).
- Federal courts cannot enjoin laws; they can enjoin only individuals who are tasked with enforcing laws. California v. Texas (2021) (citing, inter alia, Massachusetts v. Mellon (1923)).
- A sovereign government is not a proper defendant under Article III when its role consists of adjudicating lawsuits between private parties under a contested statute. Muskrat v. United States (1911).
- Federal courts have no power to enjoin or prevent a state court from hearing a lawsuit; and any such injunction “would be a violation of the whole scheme of our government.” Ex parte Young (1908).
- The equitable powers of federal courts are limited to the relief “traditionally accorded by courts of equity” at the time the Constitution was adopted. Grupo Mexicano v. Alliance Bond Fund (1999).
- Private parties who are not parties to a lawsuit cannot be enjoined in that lawsuit. Hansberry v. Lee (1940).
- Private parties enforcing private rights are not agents of the state. Hollingsworth v. Perry (2013).
- Conduct that is indisputably lawful cannot be enjoined (so even if relief were available, it could not extend to those many applications of the Texas Heartbeat Act that are permissible under Roe and Casey).