Bench Memos

Law & the Courts

Texas Files Emergency Motion to Stay Preliminary Injunction Pending Appeal

As expected, the state of Texas has asked the Fifth Circuit to stay pending appeal the district judge’s preliminary injunction against its enforcement of the Texas Heartbeat Act. Here is the introduction to Texas’s emergency motion (boldfacing in original):

The United States has obtained an injunction prohibiting the adjudication of suits in state court under a law to which it will never be subject, against a State which can never enforce the law, based on real-world disputes which do not affect it, through a cause of action Congress has never authorized. This Court’s immediate intervention is necessary to vindicate Texas’s sovereign interest in preventing a single federal district court from superintending every Texas court.

The district court’s injunction violates the separation of powers at every turn. First, the district court exceeded Article III’s limits. The federal government is an improper plaintiff because it has no standing to “merely litigat[e] as a volunteer the personal claims of its citizens.” Pennsylvania v. New Jersey, 426 U.S. 660, 665 (1976) (per curiam). And Texas is an improper defendant because it “has no interest adverse to” those challenging the constitutionality of S.B. 8, which is enforced through private litigation. Muskrat v. United States, 219 U.S. 346, 361 (1911).

Second, the district court wrongly granted an injunction in a proceeding Congress never authorized. Indeed, Congress’s detailed remedial scheme for the enforcement of Fourteenth Amendment rights precludes recognition of the free-floating cause of action “at equity” that the district court found. The United States cannot seek such an extraordinary, novel form of equitable relief when Congress has denied it a cause of action through which to do so.

Third, a federal court cannot enjoin a state court “from proceeding in [its] own way to exercise jurisdiction,” Ex parte Young, 209 U.S. 123, 163 (1908), let alone enjoin all of a State’s courts from doing so. Such an injunction—which the district court ordered—is “a violation of the whole scheme of our government.” Id.; see also Whole Woman’s Health v. Jackson, No. 21-50792, 2021 WL 4128951, at *5 (5th Cir. Sept. 10, 2021) (per curiam). A court “cannot lawfully enjoin the world at large, ” Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 832 (2d Cir. 1930) (Hand, J.), let alone hold Texas responsible for the filings of private citizens that Texas is powerless to prevent.

The district court refused to even consider the State’s request for a stay, concluding that Texas “forfeited the right to any such accommodation” because its law was “offensive.” App.937. The State respectfully requests an emergency stay pending appeal by Tuesday, October 12, 2021, at 9:00 a.m., and an administrative stay as soon as possible to prevent it from being held in contempt for the actions of third parties it cannot and does not control.

If, as I expect it will, the Fifth Circuit grants the temporary administrative stay while it considers Texas’s request for a stay pending appeal, it will likely receive criticism for suddenly changing the terrain yet again for abortion providers in Texas. Such criticism is more properly leveled at the district judge, who should have temporarily stayed his own preliminary injunction to enable the Fifth Circuit to consider Texas’s request for a stay pending appeal.


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