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US Attorney General Merrick Garland and the Department of Justice have filed a lawsuit against the state of Texas to stop enforcement of the state anti-abortion law, which empowers bounty hunters to deprive women and pregnant women of their constitutional rights.
In terms of legal authority, it was the best the DOJ could do. The Justice Department has no authority, for example, to return Texas to Mexico or to force Gregg Abbott to push a bowling ball out of his urethra against his will. It can’t stop the law; All it can do is ask the courts to stop the law and endorse the constitution.
There is not much to be hoped for legal success. The DOJ’s lawsuit was filed in the Western District of Texas. Early reports indicate this that the lawsuit will be heard by US District Court Judge Lee Yeakel. Yeakel is an agent for George W. Bush, but he has put down – and then overturned – some of the crazier laws of the Texan legislature in the past.
According to the District Court, the case will be appealed to the U.S. Fifth District Court of Appeals, a court controlled by some of the most radical Conservatives in the country. The case will then be challenged in the United States Supreme Court, where Conservative judges were chosen for their theocratic views and misogyny. Any of these courts can deny the DOJ’s motion for exoneration and allow bounty hunters to continue molesting 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 number of strong legal arguments against Texas law. Senate Bill 8 is based on a brazen attempt by Texas to avoid judicial review. By empowering individuals, as opposed to government officials, to enforce its restrictions, Texas claims that it, the state, cannot break the Constitution. This is the argument the Supreme Court accepted last week in its 5-4 paragraph ruling to enact Texan law – a ruling the court released in the middle of the night without any of the Conservatives denying Had courage to do so sign her name with her evil one.
The DOJ complaint seeks to intervene in this gross perversion of the rule of law – to counter what it calls “transparent efforts to evade constitutional scrutiny” by arguing that Texas has essentially used individuals as law enforcement agencies. According to relevant precedents, the state can be sued for constitutional violations if it empowers private individuals with criminal prosecution powers. If the Conservatives at the Supreme Court were intellectually honest, Garland has resolved their legal problem by pointing out their own precedents regarding state enforcement under the guise of private lawsuits.
Of course, the Conservatives in the Supreme Court are not intellectually honest. They just want to control women’s bodies and get everyone else to shut up. If they really want to pretend bounty hunters can violate women’s constitutional rights, a Justice Department complaint asking them to read their own precedents won’t stop them.
Fortunately, the DOJ seems to have anticipated this and is giving the Supreme Court something else to think about. The complaint relies on the principle of “interstate immunity,†which means that individual states cannot prevent the federal government from enforcing federal laws. The concept of interstate immunity borders on the concept of qualified immunity, which states that a federal employee cannot be sued for his or her work.
Regular readers of this column will recall that I wanted Biden to circumvent the Texas bounty hunting clause by either allowing abortion providers to benefit from qualified immunity, federalizing them, or hiring a number of federal employees to provide abortion services. But interstate immunity accomplishes the same goal because SB8 doesn’t just approve bounties on abortion providers; it approves bounties on anyone who “aids or aides” in the provision of abortion services.
People have been debating the fact that SB8 could apply to an Uber driver taking a pregnant person to a clinic, or a lawyer or doctor advising a person on their options. Well, Garland argues that there are many federal officials across Texas who could also be accused of assisting or favoring abortion services just by performing their statutory official duties. The DOJ’s complaint identified 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 in Texas with a legal obligation to Facilitate or provide information about abortion services.
I found the Bureau of Prisons argument particularly convincing. If a person becomes pregnant in federal prison, they have the right to an abortion. If they choose to do so, the BOP has a legal mandate to make this choice easier: for example, the person must get out of the cell and be granted access to a doctor. Under brazen and unconstitutional Texas law, a correctional officer providing constitutional medical care to a pregnant inmate could be sued for $ 10,000 by a private bounty hunter. This is a violation of the principle of intergovernmental immunity. It also gives the Justice Department the right to sue now, not later, as Texas law is currently damaging identifiable government interests.
The Conservatives on the Supreme Court may love to control women and force them to give birth against their will. But do they really want to violate the principle of international immunity? Because if they do, I’d like to share some laws New York State could make regarding the work of the Immigration and Customs Service, Border Patrol, and Department of Homeland Security. I would love to get rich by being a private bounty hunter who can sue ICE agents for $ 10,000 every time they “assist or support” a deportation. Let’s let that happen, Governor Hochul.
Unfortunately, Conservatives are hypocrites and they are likely to ignore the Justice Department’s very good legal arguments as they continue their war on women. While we wait for the courts to act, pregnant people are still being denied medical care.
But you cannot blame the Department of Justice for the breadth of these efforts. If the Supreme Court rejects these arguments, maybe the will be the day when the Democrats finally know what a sustained Conservative majority on the court really means and get serious about enlarging the court. The Department of Justice is doing what is right and normal in bringing this complaint. If they lose, maybe people are ready to do something abnormal Things to Protect Women’s Constitutional Rights.
In the meantime, let’s hope that this is not the only action taken by the Biden administration. The president said he was ordering a “whole government” response to Texas, specifically calling the Department of Justice and the Department of Health. DOJ fired his shot; Let’s see what HHS has in store. Let’s see if there are any executive measures. Hell, I’d love to see the Department of Transportation offer free flights back to America to people in Texas looking for constitutional medical care after a six week pregnancy. There is a lot more the government can do before we get down to the “whole”.
The Supreme Court has no army and no money. Ironically, Merrick Garland, a martyr of the Republican politicization of the courts, gives it a chance to preserve the only thing it has: legitimacy. Should the court miss this chance, we should again demand that the rest of the government take direct action to protect women and pregnant women. For their part, Garland and the DOJ have done a good job under applicable law
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