Following up on this post, I offer this substantial excerpt from the opposition that intervenors supporting Texas filed today:
[T]he United States’ lawsuit does nothing to alleviate the problems that prevented this Court from granting relief in Whole Woman’s Health—and it presents additional jurisdictional and procedural obstacles beyond those that confronted the abortion-provider plaintiffs in the previous go-around.
The ruling in Whole Woman’s Health did not rest on the sovereign immunity of Texas or its officials, as the United States has asserted throughout this litigation. The phrase “sovereign immunity” is not even mentioned in the per curiam opinion. Instead, the Court’s decision in Whole Woman’s Health rests on the principle that “federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves,” and that it is not “clear whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit.”
Each of these holdings from Whole Woman’s Health is fatal to the United States’ efforts to obtain a preliminary injunction. And the United States cannot end-run these holdings of Whole Woman’s Health by suing the State of Texas rather than the individual judges and court clerks. First, any injunction must enjoin the enforcement of Senate Bill 8, not the law itself, and the State of Texas does not “enforce” Senate Bill 8 by allowing its judiciary to adjudicate private civil-enforcement lawsuits brought under the statute. The State of Texas has no more of an “enforcement” role than the United States, which allows its courts to hear SB 8 enforcement lawsuits under the diversity jurisdiction. More importantly, this Court has already held that a sovereign government is not a proper defendant under Article III when its “enforcement” role extends no further than adjudicating lawsuits between private parties brought under the disputed statute. See Muskrat v. United States, 219 U.S. 346 (1911); Hope Clinic v. Ryan, 249 F.3d 603, 605 (7th Cir. 2001) (en banc) (Easterbrook, J.) (“Muskrat . . . held that Article III does not permit the federal judiciary to determine the constitutionality of a statute providing for private litigation, when the federal government (or its agents) are the only adverse parties to the suit.”)….
The second holding of Whole Woman’s Health is equally fatal to the United States’ efforts to obtain a preliminary injunction: That it is not “clear whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit.” The remedy sought by the United States is no different in this regard from the remedy sought by the abortion providers: Each of them wants to restrain state-court judges and court clerks from considering or processing lawsuits that might be filed under SB 8. Yet this Court has already held that the law is insufficiently clear to allow an injunction pending appeal (or a preliminary injunction) that includes relief of this sort. If the individual judicial officers cannot be enjoined at the preliminary-injunction stage, then the State of Texas cannot be enjoined either. That is because an injunction is an in personam remedy that prevents persons from taking proscribed actions, and the only individuals in the Texas government who take any action under SB 8 are judicial officers who consider or process private civil-enforcement lawsuits. None of these actions can be lawfully enjoined by a federal court. 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.”); Whole Woman’s Health v. Jackson, 13 F.4th 434, 444 (5th Cir. 2021) (“When acting in their adjudicatory capacity, judges are disinterested neutrals who lack a personal interest in the outcome of the controversy. It is absurd to contend, as Plaintiffs do, that the way to challenge an unfavorable state law is to sue state court judges, who are bound to follow not only state law but the U.S. Constitution and federal law.”). The United States cannot end-run those limits by suing the State as a nominal defendant while seeking relief that restrains the state’s judicial officers….
And on top of that, the United States’ lawsuit presents even more impediments to justiciability than those in Whole Woman’s Health. Unlike the abortion providers in Whole Woman’s Health, the United States does not even have a cause of action to sue Texas over SB 8. The United States concedes that there is no statute that authorizes it to sue Texas over SB 8, and its attempt to concoct cause a cause of action from “equity” is specious. The Constitution grants Congress, not the Executive Branch, the power to enforce the Fourteenth Amendment, and Congress has enacted a comprehensive remedial scheme that authorizes various types of lawsuits to enforce the Fourteenth Amendment, yet pointedly does not authorize lawsuits by the United States to enforce abortion rights under Roe and Casey. This congressionally enacted regime forecloses any attempt to divine a cause of action from “equity.” See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 74 (1996) (“Where Congress has created a remedial scheme for the enforcement of a particular federal right, we have, in suits against federal officers, refused to supplement that scheme with one created by the judiciary.”).
And even in the absence of this congressional preclusion, the United States would still lack a cause of action to sue Texas in equity. The United States invokes In re Debs, 158 U.S. 564 (1895), but Debs merely allowed the United States to sue to redress a public nuisance in violation of a statutory scheme regulating interstate commerce. See United States v. Solomon, 563 F.2d 1121, 1127 (4th Cir. 1977) (requiring the federal government to demonstrate either “a property interest” or “a well-defined statutory interest of the public at large” to sue under Debs). Neither Debs nor any case in the history of the nation allows the United States to sue to prevent state judges from adjudicating private civil suits under an allegedly unconstitutional state law. The United States is demanding a massive expansion of traditional equitable relief in defiance of Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 318–19 (1999), which limits the federal courts’ equitable powers to relief that was “traditionally accorded by courts of equity” at the time of the Constitution’s ratification. Suing in equity to enjoin a court from hearing a case was unheard of in 1789.
So while the United States rails about the supposed constitutional infirmities in SB 8, its own lawsuit is an attempt to eviscerate the constitutional separation of powers. State laws that create private civil remedies have never been subject to pre-enforcement challenge in federal district courts, because Congress has not authorized the remedies or causes of action needed for 7 such litigation. When these types of laws raise constitutional concerns (as with the tort of defamation), the exclusive means of litigating the issue is to engage in the prohibited conduct, assert the constitutional claims defensively when sued, and appeal to this Court if the state judiciary rejects the defense. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964)…. It is common that the risk of losing a constitutional defense will deter a party from engaging in protected conduct—think of the Christian wedding vendors who are facing threats of private lawsuits if they decline to participate in same-sex weddings—but the deterrence comes from the uncertainty on whether the courts will ultimately accept their constitutional defense. What is deterring abortion providers here is not the procedural structure of SB 8 or its threatened penalties, but the uncertain status of the right to abortion given the grant of certiorari in Dobbs v. Jackson Women’s Health Organization, No. 19-1392. Few if any rational abortion providers will risk violating SB 8 when this Court is considering whether to overrule Roe and Casey. That is what is inducing Texas abortion providers to comply with SB 8.