TL/DR:
State governments should not have the ability to avoid federal judicial review by delegating law enforcement to private citizens.
Ranty part:
It surprises me how little conversation there is about the legal construction of S.B. 8's enforcement mechanism (most commentators are whining about muh femoids body), even though that's the purported reasoning behind the Supreme Court's decision to not grant an emergency injunction.
Technically speaking, the federal courts don't strike laws off the books. They can and often do, however, order officials to not enforce those laws. When it comes to criminal law, the end result is usually one and the same.
Texas legislators knew that if they crafted a law that would allow doctors to be criminally charged for performing abortions after six weeks, that the federal judiciary would immediately enjoin their officials from ever enforcing it. So they did the exact opposite; S.B. 8 explicitly bans state government officials from enforcing its provisions. Instead, they created a "bounty hunting" scheme that would allow any private citizen to initiate civil proceedings in Texas state courts and win back legal costs plus at least $10k from anyone who "aids or abets" an abortion. If they managed to lose, these bounty hunters would be immune to paying the defendant's legal costs.
Naturally, Texas state officials were sued immediately. But this time, they argued that the plaintiffs lacked Article III standing to bring the suit. Generally speaking, the federal courts have historically interpreted the Case or Controversy Clause, found in Article III, Section 2 of the Constitution, to show that for a plaintiff to establish standing in a federal civil lawsuit, they must demonstrate that they have suffered a specific (i.e. not generalized) harm or injury that is "fairly traceable" to the defendants' action. Because they weren't the ones enforcing the law, Texas officials basically argued in part, any harm or injury is not "fairly traceable" to them, and so the case should be thrown out.
This is a pretty questionable if not dangerous argument. Imagine applying this logic towards offensive speech, pornography, or gun ownership.
Which is what Mississippi did. Dobbs v. Jackson Women's Health Organization is scheduled to be heard later this year and could in fact formally overturn Roe.
State governments should not have the ability to avoid federal judicial review by delegating law enforcement to private citizens.
Ranty part:
It surprises me how little conversation there is about the legal construction of S.B. 8's enforcement mechanism (most commentators are whining about muh femoids body), even though that's the purported reasoning behind the Supreme Court's decision to not grant an emergency injunction.
Technically speaking, the federal courts don't strike laws off the books. They can and often do, however, order officials to not enforce those laws. When it comes to criminal law, the end result is usually one and the same.
Texas legislators knew that if they crafted a law that would allow doctors to be criminally charged for performing abortions after six weeks, that the federal judiciary would immediately enjoin their officials from ever enforcing it. So they did the exact opposite; S.B. 8 explicitly bans state government officials from enforcing its provisions. Instead, they created a "bounty hunting" scheme that would allow any private citizen to initiate civil proceedings in Texas state courts and win back legal costs plus at least $10k from anyone who "aids or abets" an abortion. If they managed to lose, these bounty hunters would be immune to paying the defendant's legal costs.
Naturally, Texas state officials were sued immediately. But this time, they argued that the plaintiffs lacked Article III standing to bring the suit. Generally speaking, the federal courts have historically interpreted the Case or Controversy Clause, found in Article III, Section 2 of the Constitution, to show that for a plaintiff to establish standing in a federal civil lawsuit, they must demonstrate that they have suffered a specific (i.e. not generalized) harm or injury that is "fairly traceable" to the defendants' action. Because they weren't the ones enforcing the law, Texas officials basically argued in part, any harm or injury is not "fairly traceable" to them, and so the case should be thrown out.
This is a pretty questionable if not dangerous argument. Imagine applying this logic towards offensive speech, pornography, or gun ownership.
- Illinois signs into law a bill that outright bans firearm ownership by allowing any private citizen to sue firearms dealers in state courts to the tune of $10k per gun sold. When the state gets sued for violating the Second Amendment, they say, "we aren't the ones enforcing it, so this challenge should be dismissed".
- California signs into law a bill that outright bans "hate speech" by allowing any private citizen to sue a speaker in state courts to the tune of $10k per "offensive remark". When the state gets sued for violating the First Amendment, they say, "we aren't the ones enforcing it, so this challenge should be dismissed".
Which is what Mississippi did. Dobbs v. Jackson Women's Health Organization is scheduled to be heard later this year and could in fact formally overturn Roe.
Last edited:
