US v. Texas

Filed in the Western District of Texas. I have no idea whether this overcomes the problems that, in my mind, plague individual suits--no state official or person working for the state enforces this law. Therefore there is neither traceability nor redressability in standing terms and no constitutional violation in merits terms (since the law, apart from enforcement, does not violate rights). Paragraph 8 defines Texas as including "all of its officers, employees, and agents, including private parties who would bring suit under S.B. 8," contemplating every person who might sue, even if not imminent. Will that work?

There has been so much scrambling at the expense of the simple (if not ideal) solution--violate the law, get sued, defend in state court, appeal to SCOTUS. The prevailing theme is that this is insufficient. Paragraph 4 of the complaint insists that the law has thwarted "traditional mechanisms of federal judicial review," while ¶ 15 describes Texas attempting "to strip its own citizens of the ability to invoke the power of the federal courts to vindicate their rights," But how is defending in state court and appealing to SCOTUS not a traditional mechanism of federal judicial review According to a study by Arthur Hellman, prior to the mid-'70s most judicial review occurred this way; the shift to more offensive litigation happened towards the end of that decade. And if having to litigate federal issues in state court strips citizens of the ability to invoke federal courts, then the Well Pleaded Complaint Rule and Younger are constitutionally invalid. I don't think the government meant to say that.  My guess is that if this gambit fails, someone will violate the law and get sued, realizing that is the only way.

On the issue of whether the U.S. can, on behalf of its citizens, bring a broader lawsuit and obtain broader relief: I might be comfortable with that fact. The idea between having a combination of private and public enforcement of federal rights (especially civil rights) is that the federal government can pursue a broader suit (including by naming a sovereign) and get broader relief. But the inherent limits on government enforcement--resources, political will, competing demands--mean that the federal government will not and cannot puruse every case. They only go after the big ones--"more bang for the buck." And this is that singular huge issue that prompts government action.

Update: Will Baude offers a version of what my co-author calls a special standing solicitude for the United States. Unlike individuals, the U.S. can sue all of Texas and everyone who does anything with respect to a law--enacting, enforcing, adjudicating. So the U.S. can do more in that rare, big case it decides to pursue. I still believe this is a simple case in which simple defensive litigation is an option. But maybe this is the huge outlier case in which unusual government action is appropriate.

Another Update: I forgot to mention the strategic forum choice: This could have been filed in SCOTUS on original jurisdiction as a controversy between the United States and a state. At least Justices Thomas and Alito would have accepted the bill of complaint, as both are on record that SCOTUS' original jurisdiction is not discretionary. And like a suit challenging the validity of voting-age rules under the VRA, this would seem to be the type of uniquely huge national controversy involving state-law perogatives demanding speedy and original review by SCOTUS.