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Sunday, June 11, 2017

A different scope-of-injunction question

The Texas Department of Health and Human Services enacted a regulation requiring clinics to bury or cremate fetal remains; a district court enjoined enforcement of the regs. The Texas legislature then passed (and the governor signed) a comprehensive statute imposing new abortion limitations, including requirements that clinics bury or cremate fetal and embryonic remains (§ 697.004). Slate's Mark Joseph Stern argues that this move is "treading dangerously close to a conflict with a federal court order." He explains:

Technically, SB8 does not directly conflict with Sparks’ injunction, which only prevents the state from implementing the Health and Human Services rule. In practice, though, the law looks a lot like defiance of a federal court order. By way of analogy, imagine if a court struck down Texas’ constitutional amendment outlawing same-sex marriage and the legislature simply replaced it with an identical statute. That game of whack-a-mole might be hypothetically legal, but it would also be constitutionally indefensible.

Stern interviewed a lawyer from the Center for Reproductive Right who said the district court's decision would "seem to clearly proscribe this law," but declined to discuss their litigation strategy for responding to the new law.

Is this right?

In a judicial-departmentalist world, a state government can disregard judicial precedent but cannot disregard a court order. A court order halts "this conduct" by "this defendant" (and those working with this defendant)  as to "this plaintiff." The question is what is "this conduct" when talking about attempts to restrict reproductive choice and an action seeking to enjoin that restriction. The answer depends on whose perspective we adopt. From the plaintiff's standpoint, it is the state seeking to require it to do something (dispose of fetal remains) in a way that injures its business and deprives its female patients of their Fourteenth Amendment rights. From the defendant's standpoint, each involves different forms of government conduct and the enforcement of different legal rules that must be scrutinized and analyzed separately in determining constitutional validity. We can do the same with Stern's same-sex marriage hypothetical. From the defendant's standpoint, these are distinct legal enactments and enforcement of distinct rules that must be scrutinized and analyzed separately in determining constitutional validity. From the plaintiff's standpoint, the state is prohibiting her from doing something (marry a same-sex partner) in a way that deprives her of her Fourteenth Amendment rights.

My inclination is that we look from the government's perspective and that this does not implicate the existing injunction. The government acts through grants of authority to enforce legal rules. And enforcement of a different legal rule from a different source is a different action, even if the rules are identical, even if they injure the same people in the same way, and even if they share the same constitutional defects. HHS enforcing a regulation is a different official action than HHS enforcing a statute. There also is the possibility that the government would argue that a statute should get greater deference or leeway than an administrative regulation. I would reject the argument in this context--if it imposes an undue burden, it does not matter who in the state enacted the ruel--but it is something Texas could argue. And that makes the statute different than the reg and thus not a violation of the injunction.

The difference is largely procedural--how, in an ongoing litigation (the parties are under preliminary injunction but no final judgment has been entered), to challenge the constitutional validity of the new law. If enforcing the statute represents the same governmental conduct as enforcing the reg, the plaintiff can proceed via a motion to enforce the injunction, perhaps along with a motion for contempt. If this is different government conduct, the plaintiffs must proceed via a motion to "extend" the injunction, likely in conjunction with an amended complaint adding a new constitutional claim against enforcement of the new legislation.

So I believe the answer is straightforward. But it presents a different issue for how we determine the scope of an injunction in constitutional cases--looking not only to the parties,  but also the legal rule challenged.

Posted by Howard Wasserman on June 11, 2017 at 03:47 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink

Comments

On the flip side, does the new statute, if not violative of the injunction, render the plaintiff's case challenging the regulation moot? If the suit isn't extended to challenge the new legislation, then any injunction barring enforcement of the regulation would be meaningless.

Posted by: AskingForAFriend | Jun 11, 2017 7:15:37 PM

No, because the statute does not purport to supersede the regulation, but only offers a second source of law for a duty of clinics to bury or cremate remains. If the injunction against the reg is lifted, HHS could enforce the regulation, even if it could not enforce the statute.

Posted by: Howard Wasserman | Jun 11, 2017 7:22:42 PM

"And enforcement of a different legal rule from a different source is a different action, even if the rules are identical, even if they injure the same people in the same way, and even if they share the same constitutional defects."

What if they're just different, but identical, legal rules from the same source? So, you know, the Texas legislature enacts Statute A. Enforcement of that statute is enjoined. Then it enacts identical (except for a different effective date and different title) Statute B. Or perhaps it enacts Statute C, with immaterially different wording. Or maybe it defines clinic in a way that captures all of the plaintiff clinics, or all of the existing clinics in the state, but theoretically could leave some clinics out and, the legislature claims, does so to ease burdens on really small clinics. The point of these hypotheticals is that I'm tentatively attracted to a view on which the injunction bars enforcement by the defendants of any rule that does exactly the things and has exactly the qualities that led to the first rule being enjoined. If it is actually the case - and I guess, even if it's arguably the case - that the standard of review of a reg is different than the standard of review of a state statute, which I doubt, then sure, a statute presents a different case.

Posted by: Asher Steinberg | Jun 11, 2017 8:43:10 PM

"No, because the statute does not purport to supersede the regulation, but only offers a second source of law for a duty of clinics to bury or cremate remains. If the injunction against the reg is lifted, HHS could enforce the regulation, even if it could not enforce the statute."

I'm not sure I follow. The existing lawsuit is against the regulation. Right? If a challenge to the statute is not added to the lawsuit, and the statute imposes the same duty as the regulation, then couldn't you say that the lawsuit is moot. What relief can the plaintiffs get? An injunction against enforcing the regulation wouldn't have any teeth, if the statute imposes the same requirement.

Posted by: AskingForAFriend | Jun 14, 2017 1:01:57 PM

The suit should not be moot because the regulation remains on the books and, absent the injunction, could be a source of enforcement in a way that limits my rights. That there may be a different statute that infringes on my rights that remains enforceable should not moot the challenge to the reg. In general terms: That I may be subject to punishment under Rule B should not moot a constitutional challenge to Rule A, because Rule A still infringes my rights if it is enforced against me. The constitutional validity of Rule B should be beside the point.

Posted by: Howard Wasserman | Jun 14, 2017 1:13:22 PM

That makes sense. I guess it's not mootness per se.

Your more general statement of the issue makes me wonder about redressability and standing. If two identical laws impose the same duty, can you bring a challenge against only one of them? Or would the fact that succeeding in challenging Rule A would not relieve you of the identical duty under Rule B mean that you lacked standing to challenge only Rule A? It's a hypothetical situation obviously (are there ever really two identical laws? If so, why wouldn't you challenge them both?).

Posted by: AskingForAFriend | Jun 14, 2017 1:40:19 PM

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