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Thursday, May 12, 2022

More overlapping jurisdictional doctrines

Another example of overlapping "jurisdictional" doctrines, in which courts take the same fact--whether an executive official has a present or future intent to enforce an invalid law--going to ripeness, standing, and EPY. The Eighth Circuit held that sovereign immunity bars a challenge to a Minnesota law prohibiting certain false statements in campaign materials, because the four defendant prosecutors, while responsible for enforcement, had no present intent to enforce the law. The court discusses precedent in which the court found standing and ripeness but held the executive had sovereign immunity because, while the responsible executive, he had no intent to enforce.

I continue to have several problems with this. First, it makes no sense for three doctrines to turn on one fact. Second, it makes less sense for a fact to point different ways for different doctrines--if there is sufficient threat of enforcement to establish standing, there should be sufficient threat of enforcement to establish an ongoing violation for EPY. Third, this is all merits and it would be nice if we treated it as such.

Finally, note that the court cited the SB8 case for the basics of EPY and the absence of an enforcing executive.

Posted by Howard Wasserman on May 12, 2022 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink

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