Constitutuionalizing constitutional litigation

The district court held argument Friday on DOJ's motion for a TRO (which will be treated as a preliminary injunction) in its lawsuit against Texas over SB8. Reports suggest the judge was skeptical of the law. I could see the judge granting the injunction because the irreparable harm is so great. Then we see how faithful the Fifth Circuit is to the standard for stays.

Many stories about the hearing focus on one question from Judge Pitman to Texas: If it was "confident" in the constitutional validity of SB8, why did it "go to such great lengths" to avoid direct enforcement. The question presumes that the purpose of private enforcement is and that this is constitutionally problematic. Accepting the first, point which is probably true, the second point presumes two further, erroneous things.

The first is that states are limited in the power to decide what laws to enact and how to enforce them. That has never been the case. States create substantive rights and can choose to have those rights enforced through private tort- or tort-like litigation. The Constitution limits the substantive rights, not the enforcement process. If those state substantive rights abridge federal constitutional rights, rights-holders can raise that as a defense. This is what happened in New York Times and its progeny and in Shelley v. Kramer and what is happening now to Jack Phillips and Masterpiece Cakeshop. And the tort analogy is important because tort law uses exclusive private enforcement--the state will not sue or prosecute a newspaper for defamation.

The response, of course, is this is not tort law because tort law is about remedying personal injuries, where as an SB8 plaintiff can be any random person who need not show any personal effects. That leads to the second false premise--that Article III's personal-injury requirement is incorporated into Fourteenth Amendment due process. The Constitution limits state power to decide who can sue to enforce the state-law rights it creates, allowing states to authorize private suits only by those who have suffered a personal injury. But this also has never been the case. For example, the Court never considered or raised the possibility that California law violated the Constitution by authorizing non-injured, disconnected "any persons" to sue Nike for false advertising.*

[*] The Court dismissed cert as improvidently granted in Nike, avoiding an important First Amendment issue about the meaning of commercial speech. The possibility that the state-law authorization of private litigation was invalid would have given the Court an additional reason not to dismiss.

News reports suggest the district court will grant the injunction. I will be curious to see the grounds for the injunction, envisioning a "right-result-for-the-wrong-reason" opinion. The DOJ lawsuit runs into the same problem as private offensive actions. SB8 does not violate the Constitution by existing, so the constitutional violation and thus the injunction must focus on stopping enforcement of the law. But "Texas," in the sense of Texas executive officers, does not enforce this law. "Texas" includes state judges. But anti-suit relief from a federal court does not run against the courts or judges (as opposed to litigants) to keep them from adjudicating cases before them; capturing judges within "Texas" does not change that the injunction would prevent adjudication rather than enforcement. A proper injunction in the DOJ lawsuit depends on"Texas" including the millions of deputized "any persons" who do enforce the law. It must be that suing Texas reaches this entire group, even if an individual rights-holder plaintiff could not prove that any particular person intended to sue. I believe that argument works, in the unique and rare context of sovereign-to-sovereign. I doubt the district court can parse the issue that well. And no one will care if he reaches the "right" (in the eyes of reproductive-rights supporters, of which I am one) result.