« JOTWELL: Thomas on Adams, et al. on open justice | Main | Whittington on the new Florida higher-ed bill »

Saturday, February 25, 2023

Making a hash of pre-enforcement offensive litigation

In Fund Texas Choice v. Paxton, a First Amendment challenge to three sets of Texas laws a purporting to prohibit funding and facilitating legal out-of-state abortions--SB 8, HB 1280 (a trigger law that took effect 30 days after Dobbs), and pre-Roe zombie laws. Some blame for the hash rests with justiciability doctrine, some rests with the district judge.

To demonstrate the hash, I will identify the key legal or mixed principles, then identify the court's holding in the case, then show where (I believe) it goes off the rails.

Legal Principles and Findings:

    • No public enforcement of SB8.

    • The attorney general lacks power to enforce pre-Roe laws; enforcement rests with local DAs. Nevertheless, Paxton made numerous public statements about his intent to enforce those laws.

    • The attorney general has the power to enforce HB 1280 and made numerous statements indicating an intent to enforce the law with respect to out-of-state abortions.

    • HB 1280 has no extra-territorial effect and the attorney general's public-but-informal hints and suggestions, falling short of a full statement of intent, do not overcome the law's text.

    • Texas repealed its pre-Roe laws by implication. Based on binding Fifth Circuit precedent and undone by legislative findings in SB8, the post-Roe regulatory scheme for legal abortion cannot co-exist with the pre-existing bans on virtually all abortions.

    • The court never analyzed whether enforcement of the pre-Roe laws violates either the First Amendment or the right to travel.

Conclusions:

    • Claims against Paxton dismissed for lack of subject matter jurisdiction based on lack of standing and sovereign immunity. Although the court does not specify, it appears to be for lack of standing and/or sovereign immunity. Because Paxton cannot enforce any of the challenged laws against plaintiffs' desired conduct (he cannot enforce pre-Roe laws and cannot enforce HB 1280 as to the plaintiffs' desire conduct), he is not a responsible executive officer and plaintiffs lack traceability and redressability.

    • Preliminary injunction granted against several named local DAs (although the court has not certified the defendant class of all DAs) from enforcing pre-Roe laws as to funding or facilitating out-of-state abortions.

Why this is all such utter nonsense:

    • Bickel defended standing and the "passive virtues" as eliminating unnecessary constitutional adjudication. But consider how much and how detailed the adjudication necessary to dismiss this case for lack of jurisdiction--to say that the court lacked the power to consider the constitutional validity of Paxton's conduct or the scope of the plaintiffs' constitutional rights. The court analyzed the attorney general's power under three sets of laws, the effect of the attorney general's grandstanding and bumptious threats, and the extra-territorial scope of new state law. But the real meaning of these conclusions (putting aside their normative correctness) should be substantive--Paxton's conduct does not and cannot violate the plaintiffs' rights because he lacks the power to impose any legal consequences on their conduct. No constitutional violation means no injunction. But the court had jurisdiction to analyze all of this.

    • Were this accurately treated as merits, plaintiffs could tailor a lawsuit such as this one. Paxton has been running around hinting about enforcing HB 1280 extra-territorially, even if he lacks the power to do so. It would benefit the constitutional system if plaintiffs could react to those hints by obtaining an express declaration that he cannot do so, whether because he lacks power under state law or because doing so would be constitutionally invalid. Instead, they have that analysis and those determinations, but without legal effect. (It might have precedential effect, as it is essential to the holding; but district courts cannot create binding precedent and jurisdictional holdings tend to carry less substantive precedential force as to any underlying constitutional issues.

    • The court drops the following footnote in dismissing the claims against Paxton:

While the Court dismisses Plaintiffs’ H.B. 1280 claims without prejudice, it recognizes that there may be certain situations where the statutory analysis changes. For example, the analysis might change if a local prosecutor imminently threatens charges for funding out-of-state abortions or an opinion from the Attorney General’s office declares it illegal. 

The court did not dismiss the claims against Paxton for lack of imminence, so I do not see why imminence has entered the mix. He dismissed them because HB 1280 unambiguously does not allow extra-territorial application. I do see why either of those events changes that conclusion. The court recognizes that Paxton is hinting at extra-territorial enforcement "for the deliberate purpose of deterring funds from facilitating out-of-state abortions." But if those hints and threats do not overcome unambiguous text, a local DA's more imminent and specific threat or a formal AG opinion should not do so. Either the executive position can overcome unambiguous text (in which case these claims against Paxton should proceed, based on his posturing) or they cannot (in which case the footnote is wrong).

    • If pre-Roe laws were repealed by implication, the claims against the DAs should have been dismissed on the same bases as the claims against Paxton. Repealed laws no longer exist as law, leaving the DAs nothing to enforce. A court cannot enjoin an executive from doing something he lacks the authority to do. DAs can no more enforce pre-Roe laws than Paxton can enforce HB 1280--in either case, no existing state law prohibits funding or facilitating out-of-state abortions and thus the target executives have nothing to enforce. In fact, the argument for lack of jurisdiction as to the DAs is stronger than as to Paxton. Paxton has an extant law he could enforce in the abstract, but the court interpreted it to be unenforceable in the current circumstances; the DAs have nothing but air.

    • Making even less sense, the court uses implied repeal as the sole basis to find likelihood of success on the merits and to grant the injunction. The court never discusses whether the pre-Roe laws violate the First Amendment or the right to travel; that the laws were repealed by implication makes them invalid and unenforceable.

    • The last point arises from the court treating impliedly repealed laws differently from expressly repealed laws, a unique category subject to unique analysis. But that framing makes no sense. Had the legislature repealed pre-Roe laws, the court would have dismissed for lack of standing (what I think should be merits, but same result); again, the lack of a law on the books leaves nothing to enforce and the court cannot enjoin the executive from what he cannot do. Had the law not been impliedly repealed, it would be a Dobbs-dezombified law; the court must consider whether the living law applies extra-territorially (the court says it does) and whether it violates the First Amendment or the right to travel (the court never says). Instead, impliedly repealed laws create a third thing--extant (thus potentially enforceable, giving plaintiffs standing) but per se invalid (thus obviating analysis of their constitutional validity). I have never seen anything like this and the court does not explain or justify this category of law.

How the case should have been resolved:

    • The court should have reached the merits as to Paxton enforcing HB 1280, a live law. There ought to be consequences for executive saber-rattling, even when ungrounded in state law, having the purpose and effect of deterring conduct that is lawful under state law and constitutionally protected. The court should have addressed whether the law, if applied extra-territorially as Paxton has threatened, violates the Constitution.

    • If pre-Roe laws were impliedly repealed, it should not have enjoined the DAs. If implied repeal remains an open question, then the court should have analyzed their constitutional validity before entering the injunction.

    • Someone in the comments to Volokh's post on the decision suggests the Fifth Circuit will certify the question of implied repeal to the Texas Supreme Court. That may be a good idea. But the district court's analysis cannot stand regardless of that court's decision. If the laws were impliedly repealed, the district court erred in enjoining enforcement. If the laws were not impliedly repealed, the district court never addressed or resolved the substantive constitutional issue, which the reviewing court ought not do for the first time.

Pretty bad all around.

Posted by Howard Wasserman on February 25, 2023 at 12:29 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink

Comments

The comments to this entry are closed.