« Leaks and Executive Privilege | Main | The most-Jewish World Series has not been good for the Jews (at least so far) (Update) »

Monday, November 01, 2021

The solution cannot be worse than the problem

In advance of this morning's arguments in the SB8 cases ( US v. Texas and WWH v. Jackson), Ilya Somin endorses the amicus brief of the Firearms Policy Coalition against the validity of SB8 (it is concerned that a Blue state will enact a similar law targeting firearms owners). The gist is that the enactment and existence of a constitutionally violative law that chills the exercise of constitutional rights violates those rights and the courts can enjoin whoever "adopts and implements" the law, including judges and private individuals who have not revealed themselves.

This position has broad implications. It rejects a number of established principles, especially with respect to suing judges and with the question of what constitutes a constitutional violation. It would be least appealing to Justice Thomas, the staunchest advocate of gun rights. It also places a centrality on offensive/preemptive federal-court adjudication, resting on the belief that defensive state-court litigation is per se insufficient to protect constitutional rights. That undermines among other things, Younger and perhaps the well-pleaded complaint rule as applied to constitutional defenses (which is the best solution to this). It shifts massive amount of litigation into federal court--any tort defendant with a First amendment defense would be entitled to a federal forum and adjudication of the federal issues in federal district court.

The beauty of resolving this case through United States rather than through WWH is that it does the least damage to the ordinary flow of constitutional litigation. The federal government will sue only in the extraordinary case, so a broad take on its powers to seek anticipatory relief will be be more limited than one that says any rights-holder facing enforcement of state law in a way that might violate their rights is gauaranteed a federal forum by suing the state-court judge.

Posted by Howard Wasserman on November 1, 2021 at 08:38 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink

Comments

The comments to this entry are closed.