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Sunday, June 27, 2021

SCOTUS, standing, and HB8

SCOTUS decided two significant standing cases this Term, both with implications for challenges to Texas's HB8 fetal-heartbeat law.

California v. Texas (ACA) reaffirms that it will be impossible to bring a pre-enforcement suit against state officials. California held that individuals had no standing to challenge the zeroed-out mandate, because the government had nothing to enforce, there is "no one, and nothing, to enjoin." "[N]o unlawful Government action 'fairly traceable' to §5000A(a) caused the plaintiffs’ pocketbook harm. Here, there is no action—actual or threatened—whatsoever. There is only the statute’s textually unenforceable language." Similarly, "no unlawful government action is fairly traceable" to HB8 that injures the plaintiffs. The reason differs. In California, the provision of ACA was unenforceable. HB8 is enforceable--it provides for damages and injunctive relief against those who provide or facilitate abortions--but not by the government. The end point--no government enforcement and no government official to enjoin--is the same.

TransUnion v. Ramirez sparked some conversations about HB8, which accords a private statutory right to people who can point to no historically recognized "real" and "concrete" injury. Likely HB8 plaintiffs have suffered less of an actual or threatened injury than the class members in TransUnion. But TransUnion controls standing in federal court under Article III; it says nothing about standing in Texas courts under the Texas Constitution. So it has no direct effect on the validity of the procedures in HB8. The question is whether it could have indirect or persuasive effect. As I wrote (citing an expert on the Texas Constitution), Texas courts follow Article III but accord greater deference to legislative authorizations of suit. The defendant in the first HB8 suit will raise lack of standing and argue that Texas courts should (but are not required to) follow TransUnion and impose the same limits on the legislative power to create new rights. Stay tuned.

Posted by Howard Wasserman on June 27, 2021 at 03:10 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink

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