Texas has filed a combined brief for United States v. Texas (the DOJ case) and Whole Woman’s Health v. Jackson (the abortion providers’ case). Here is an excerpt from its summary of argument:
I. Because neither lawsuit presents a case or controversy within the meaning of Article III, both should be dismissed for lack of jurisdiction.
A. The WWH petitioners allege they are injured by the prospect of private lawsuits in Texas courts, but that injury is not traceable to or redressable by the executive officials they sued. And because these officials do not enforce SB 8, Ex parte Young does not provide a way around Texas’s sovereign immunity. Similar problems plague the WWH petitioners’ claims against the Texas judiciary. At bottom, a potential litigant does not have an Article III case or controversy against the judge who may be asked to apply both state law and this Court’s precedent in a lawsuit against that litigant. Moreover, as the judge is already bound to apply this Court’s decision in Casey—an obligation that a state judge is presumed to perform in good faith—an injunction to apply Casey would violate Article III.
B. The United States’ suit against the State of Texas suffers most of the same jurisdictional maladies—and a couple more. The United States may not have to overcome Texas’s sovereign immunity, but substituting the United States as plaintiff does not solve the WWH petitioners’ inability to identify an appropriate defendant. Most prominently, Texas does not cause the United States injury by the mere existence of an allegedly unconstitutional state law that may affect private parties. See Muskrat v. United States, 219 U.S. 346 (1911). Indeed, when plaintiffs have sought to challenge private causes of action in lawsuits against state officials, the courts of appeals have unanimously held there was no case or controversy. Not even the United States can obtain an advisory opinion on the constitutionality of Texas’s law by suing Texas.
The district court was wrong to allow United States to use a parens patriae theory to skirt its obligation to show its own cognizable injury that is caused by the State. Texas does not dispute the supremacy of federal law, but the Supremacy Clause is a rule of decision. It does not grant a freestanding federal interest or grant of federal power to sue whenever the United States wants. Put another way, that the United States is a sovereign does not allow it to sue to vindicate citizens’ individual constitutional rights that it does not share. And the United States did not carry its burden to clearly show an imminent injury to federal programs as required to obtain a preliminary injunction.
II. The United States’ lawsuit also fails because there is no statutory or equitable basis for it to seek an injunction. Recognizing that no statute authorizes its suit, the United States argues it has an equitable cause of action any time its interests are implicated. That is a striking power-grab with no basis in precedent. Every case the United States cites came into federal court based on either a statutory cause of action or a cause of action traditionally recognized in courts of equity. Equity has historically allowed the sovereign to seek an injunction abating a public nuisance, to protect its property interests, and to cancel patents it granted. But equity has not traditionally allowed that same sovereign to sue to vindicate an individual’s rights simply because a different sovereign does not provide that individual with a pre-enforcement judicial mechanism to vindicate his own rights.
Even if there were an equitable cause of action available, Congress has displaced it. Civil-rights claims are authorized by numerous statutory mechanisms, but those mechanisms do not include a cause of action for the United States to vindicate individuals’ substantive-due-process rights.
There is no cause to abandon these bedrock principles of federal jurisdiction simply because the WWH petitioners prefer to sue in federal court rather than be sued in state court. The Constitution does not guarantee pre-enforcement review of state (or federal) laws in federal court. And there is nothing unprecedented about vindicating constitutional rights as a state-court defendant. To the contrary, that is the normal path by which constitutional issues come to this Court—indeed, the only one available from the Judiciary Act of 1789 until Congress created general federal-question jurisdiction.
See also Parts III and IV of the summary. (I’ve corrected some typos that resulted from the expedited deadline.)