Some responses to Somin on SB8

Ilya Somin offers some thoughts on SB8 and the Court's decision to allow enforcement pending litigation.

Somin argues rejecting current standing and injunction rules in favor of a "general injunction" precluding enforcement of that law by anyone who might otherwise be in a position to undertake that task. In an email, Somin clarifies that the target defendant in the lawsuit would be the government entity that created the law (a further rejection of current sovereign immunity rules). This is an intriguing idea. I favor simplifying constitutional litigation by making the government the target defendant. And I do not like standing rules as they exist as jurisdictional limitations. I am not quite ready to dissaggregate judicial review and remedy from actual or threatened enforcement of the law by someone, even if the government is ultimately "responsible." We still do not have that.

Somin rejects the criticism that SB8 unleashes "vigilantes," because many laws use private enforcement. "The troubling aspect of SB 8 is not the use of private enforcement, as such, but the resort to it as a mechanism for evading judicial review." But SB8 does not evade judicial review, as much as it channels judicial review into a defensive posture. That is unusual for most statutory regimes (e.g., environment and civil rights law), which combine public and private enforcement, leaving a government official to sue for injunctive relief. But it is not unusual for tort regimes (e.g., defamation), in which constitutional challenges to liability must be made on defense. Yes, that has a chilling effect in the interim. But the only way around that chilling effect is to say that pre-enforcement offensive litigation is constitutionally required--and I see no reason for that to be the case.

Somin's third issue is ingenious. He argues that leading pro-choice organizations should commit to providing legal representation and to cover any damages or fees awarded, thereby incentivizing providers  to continue providing services. The prospect of providers being able to defend themselves may deter Billy Bob from filing suit. And I would add that the legal representation could include suing Billy Bob in federal court, further deterring him from filing suit. This is a fascinating idea that we will try to work into the paper.