The Justice Department Strikes Back

The Justice Department Strikes Back

Since the DOJ cannot force Texas Republicans to magically become decent people, its smart lawsuit against the state’s abortion ban is the next best thing.


US Attorney General Merrick Garland and the Department of Justice have filed a complaint against the state of Texas in an attempt to stop enforcement of the state’s anti-abortion law, which empowers bounty hunters to deprive women and pregnant people of their constitutional rights.

In terms of legal authority, this was the most the DOJ could do. The Justice Department is not empowered to, say, give Texas back to Mexico or force Gregg Abbott to push a bowling ball out of his urethra against his will. It cannot stop the law; all it can do is ask courts to stop the law and support the Constitution.

There isn’t much hope for legal success. The DOJ’s lawsuit was filed in the Western District of Texas. Early reports indicate that the suit will be heard by US District Court Judge Lee Yeakel. Yeakel is a George W. Bush appointee, but he does have a history of striking down some of the nuttier laws passed by the Texas legislature—and then getting overturned.

After the district court, the case will be appealed to the US Court of Appeals for the Fifth Circuit, a court controlled by some of the most radical conservatives in the entire country. And after that, the case will be appealed to the Supreme Court of the United States, where conservative justices have been handpicked for their theocratic views and hostility to women. Any one of these courts can deny the DOJ’s request for relief and allow bounty hunters to continue harassing people in violation of the Constitution.

Nothing can stop conservative judges from ignoring the law, but it’s worth noting that the DOJ complaint contains a series of strong legal arguments against the Texas law. Senate Bill 8 is premised on a brazen attempt by Texas to avoid judicial review. By empowering private citizens, as opposed to government officials, to enforce its restrictions, Texas claims that it, the state, cannot be held in violation of the Constitution. This is the argument that the Supreme Court accepted last week with its 5-4, one-paragraph decision to allow the Texas law to go forward—a decision the court released in the dead of night, without any of the conservatives having the guts to sign their name to their evil.

The DOJ complaint attempts to intervene in this gross perversion of the rule of law—to counteract what it calls Texas’s “transparent effort to evade constitutional scrutiny”—by arguing that Texas has essentially deputized private citizens to act as law enforcement. Under relevant precedents, the state can be sued for constitutional violations when it empowers private citizens with the powers of law enforcement. If conservatives on the Supreme Court were intellectually honest, Garland has solved their legal problem by pointing to their own precedents regarding state enforcement under the guise of private action.

Of course, the conservatives on the Supreme Court are not intellectually honest. They just want to control women’s bodies and have everybody else shut up about it. If they really want to pretend that bounty hunters can violate the constitutional rights of women, a complaint by the Department of Justice asking them to read their own precedents is not going to stop them.

Luckily, the DOJ seems to have anticipated this and so gives the Supreme Court something else to think about. The complaint invokes the principle of “intergovernmental immunity,” which is the concept that individual states cannot prevent the federal government from enforcing federal laws. The concept of intergovernmental immunity is adjacent to the concept of qualified immunity, which asserts that a federal employee cannot be sued for doing their job.

Regular readers of this column will remember that I wanted Biden to get around Texas’s bounty-hunting clause either by allowing abortion providers to benefit from qualified immunity, by federalizing them, or by hiring a number of federal workers to provide abortion services. But intergovernmental immunity accomplishes the same goal, because SB8 doesn’t authorize bounties only on abortion providers; it authorizes bounties on anyone who “aides or abets” the provision of abortion services.

People have discussed the fact that SB8 could apply to an Uber driver taking a pregnant person to a clinic, or a lawyer or doctor counseling a person on their options. Well, Garland argues that there are many federal officials operating throughout Texas who could also be accused of aiding or abetting abortion services, merely by carrying out their official duties as required by law. The DOJ complaint mentions the Department of Labor, the Office of Refugee Resettlement, the Bureau of Prisons, the Centers of Medicare and Medicaid Services, the Office of Personnel Management, and the Department of Defense as federal agencies, operating inside Texas, who have a legal duty to facilitate or provide information about abortion services.

I found the Bureau of Prisons argument to be particularly compelling. If a person in federal prison gets pregnant, they have the right to have an abortion. If they elect to do so, the BOP has a legal mandate to facilitate that choice: For instance, the person must be allowed out of their cell and given access to a doctor. Under the brazen and unconstitutional Texas law, a corrections officer who allows a pregnant inmate to receive constitutionally protected medical care could be sued by a private bounty hunter for $10,000. This is a violation of the intergovernmental immunity principle. It also gives the Department of Justice standing to sue now and not later, because right now the Texas law is causing harm to identifiable government interests.

The conservatives on the Supreme Court might love controlling women and forcing them to give birth against their will. But do they really want to vitiate the principle of intergovernmental immunity? Because, if they do, I’d like to share some laws New York state could pass regarding the work of the Immigration and Customs Enforcement agency, Border Patrol, and the Department of Homeland Security. I would very much like to become wealthy by being a private bounty hunter who can sue ICE agents for $10,000 every time they “aid or abet” a deportation order. Let’s make that happen, Governor Hochul.

Unfortunately, conservatives are hypocrites and it’s as likely as not that they’ll ignore the very good legal arguments made by the Justice Department while continuing their war on women. Meanwhile, as we wait for courts to act, pregnant people are still being denied medical services.

But you can’t fault the Justice Department for the fullness of this effort. If the Supreme Court rejects these arguments, maybe that will be the day Democrats finally wise up to what a permanent conservative majority on the court really means and get serious about expanding the court. The Justice Department is doing the right and normal thing by bringing this complaint. If they lose, maybe people will be willing to do some abnormal things to protect the constitutional rights of women.

In the meantime, let’s hope this isn’t the only action from the Biden administration. The president said he was ordering a “whole of government” response to Texas, and specifically called out the Department of Justice and the Department of Health & Human Services. DOJ has shot its shot; let’s see what HHS has in store. Let’s see if there is executive action forthcoming. Heck, I’d like to see the Department of Transportation providing free plane flights back to America for people in Texas seeking constitutionally protected medical care after six weeks of pregnancy. There’s a whole lot more government can do before we get to the “whole” of it.

The Supreme Court has no army and no money. Ironically, Merrick Garland, a martyr to the Republican politicization of the courts, is giving it a chance to maintain the only thing it does have: legitimacy. Should the court throw that chance away, again, we should demand that the rest of the government take direct action to protect women and those who become pregnant. For their part, Garland and the DOJ have done a good job within the bounds of established law

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