By Dave Andrusko
In a separate post today, we followed up with a few additional words on the 100% predictable decision by Joe Biden’s Justice Department to sue Texas over SB 8, its Heartbeat law. Attorney General Merrick Garland is “asking a judge to declare the measure unlawful, block its enforcement and ‘protect the rights that Texas has violated,’” in the words of the Washington Post.
Meanwhile, also late last week, in a 19-page ruling, a three-judge panel of the 5th Circuit Court of Appeals left “in place an order that paused a lawsuit filed by a coalition of abortion providers challenging the measure [SB8] from proceeding at the federal district court level pending an expedited appeal,” Jerry Lambe reported.
The trio–Judges Kyle Duncan and Kurt Engelhardt, appointed by President Trump, and U.S. Circuit Judge Edith Jones, appointed by President Reagan–came to the same conclusion as the United State Supreme Court did for essentially the same reasons.
Lambe explained the “novel” legal mechanism at work in SB8. “Because the law is effectively enforced by private citizens as opposed to elected officials, the typical approach to having a judge block the law by suing the government was not available for the plaintiffs. Instead, the suit named as defendants various state officials and agencies and one private citizen—Mark Lee Dickinson—described in the complaint as being “deputized to bring S.B. 8 enforcement actions under color of state law.’”
The judges wrote
“This language could not be plainer. Confirming that none of the State Defendants has an ‘enforcement connection’ with S.B. 8 is not difficult in light of the statute’s express language and our case law. To begin, the Texas Attorney General has no official connection whatsoever with the statute. No enforcement power means no enforcement power.”
As Lambe wrote, “The court added that it may not have jurisdiction to rule on the merits of the lawsuit’s claim that S.B. 8 unconstitutionally violates a woman’s right to have an abortion prior to fetal viability until there is an actual lawsuit brought under the measure.”
We are not blind to the ‘serious questions regarding the constitutionality of the Texas law at issue.’ We are also mindful of the real-world effects while courts resolve these vexing procedural questions. But we point out, as did the Supreme Court, that potential S.B. 8 defendants will be able to raise defenses before state courts that are bound to enforce the Constitution. Nonetheless, for a federal court to proceed to the merits without certainty of jurisdiction “would threaten to grant unelected judges a general authority to conduct oversight of decisions of the elected branches of Government.” [quoting a previous court decision]. In light of that nonnegotiable principle, we cannot allow proceedings to go forward while our court considers whether the federal judiciary has any power to entertain this novel lawsuit to begin with.