The so-called Supreme Court is about to decide whether states can blatantly ignore the Constitution.
Supreme Court briefs are due by 5pm today for Texas SB 8. Or as Texas likes to think of it: We Like to Think that the Constitution Can’t Save You from the Texas Abortion Bounty Law.
The cases being argued next Monday aren’t about whether abortion should be legal. Even with a terrible outcome, Roe will not be directly overturned. No, it’s even worse than that. When push comes to shove, does the Supreme Court believe in the rule of law? So far, over the past several years, the answer for the Roberts court the answer appears to be “not so much” when it benefits the goals of The Federalist Society.
But this feels like a whole different ballgame. Because it’s not just abortion rights that are at stake. Or fair elections because they enabled all the dark money donations. Or voting rights.
What’s at stake this time? Pretty much everything, as far as I can tell.
Erwin Chemerinsky, dean and professor of law at the UC Berkeley School of Law, wrote the summary below for the Sacramento Bee. I have included a number of bits & pieces below, but please click over and read the whole thing.
The Supreme Court is about to decide whether states can blatantly ignore the Constitution
The Supreme Court will hear oral arguments Monday in two cases challenging a Texas law that prohibits abortions after the sixth week of pregnancy. The stakes in these cases are great not only for the future of Roe v. Wade but also for the ability of states to violate the U.S. Constitution.
No one disputes that Texas’ Senate Bill 8 blatantly violates the Constitution. The Supreme Court has ruled for almost 50 years that states cannot prohibit abortions until a fetus is viable — about the 24th week of pregnancy. Yet the Texas law prohibits abortions far earlier than that. Until and unless Roe v. Wade is overruled, the Texas law is unconstitutional and should be enjoined.
Twice, federal district courts have done exactly that and issued preliminary injunctions to keep the Texas law from going into effect. In each instance, on Sept. 1 and last week, the Supreme Court refused to enjoin the law. The result has been widespread closures of abortion clinics in Texas, even though women in the U.S. have a constitutional right to abortion.
How can this be?
Texas says no court can consider the constitutionality of the law or issue an injunction against it, but this surely cannot be right. The court has repeatedly said people don’t need to violate a law in order to challenge its constitutionality.
The two cases to be heard by the court on Monday thus raise the question of whether a state can adopt an unconstitutional law and immunize it from being enjoined by any court.
The issue before the court is whether the federal government has standing to sue a state when it’s violating the constitutional rights of its residents.
Therefore, the issue of whether to overrule Roe v. Wade is not directly before the court on Monday. The two cases to be argued that day are both about who, if anyone, can challenge a state law that authorizes civil suits for exercising a constitutional right.
That means the consequences are far greater than just abortion rights: If no one can bring a suit challenging a state law authorizing civil suits, then states can adopt laws creating liability for the exercise of any constitutional right. As a consequence, states could, for example, adopt a law authorizing suits against those performing same-sex weddings, even though there’s a constitutional right to marriage equality.
The outcome of the cases before the Supreme Court would be obvious and clear — states cannot disobey the Constitution — except that the cases arise in the context of abortion. And a majority of the justices on the court have already shown that they are opposed to constitutional protection for abortion rights.
It’s hard to overstate the significance of what will be argued next week, which is ultimately about whether a state can flout the Constitution. If no one can sue to enjoin an unconstitutional law, what is left of the supremacy of the Constitution and the rule of law?
Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law.
Chemerinsky makes a good case, I think, for what’s a stake.
Briefs were due by 5pm today.
⭐️
Excerpt from the summary of one brief, from one of the good guys:
Insulating state laws from meaningful judicial re- view flouts the bedrock principle that there must be some mechanism for challenging unconstitutional state action in order to ensure the supremacy of federal law and the rule of law in general. As this Court explained more than two centuries ago: “It is emphatically the province and duty of the judicial department to say what the law is…. So if a law be in opposition to the constitution . . . the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.” Marbury v. Madison, 5 U.S. 137, 177–78 (1803). By attacking well-established constitutional rights through a scheme designed to evade judicial review, S.B. 8 represents a challenge to the rule of law, our system of constitutional government, and the Constitution’s Supremacy Clause.
So the good guys (including Chemerinsky above) recognized the obvious: by privatizing the right to enforce the law, Texas was trying to evade judicial review.
And, the liberals argue, there is “state action” here insofar as under SB 8, litigants are expressly empowered by Texas to take up the state’s enforcement mantle (essentially, acting as a proxy for the state). Therefore, basically, Texas is a proper defendant and the US has standing.
⭐️
Excerpt from the summary of another brief, from the crazies who hate women and want your neighbors to spy on you:
Petitioners raise a parade of horribles about what will happen if this Court does not create an abortion exception to federal jurisdictional limits. Petitioners fear that the Bill of Rights will be a dead letter if pre- enforcement challenges to privately enforced state laws are not permitted in federal court.
These guys (gag) basically argue that the federal government can’t stop private citizens from suing each other in state court over state court laws. There is no subject matter jurisdiction, Sekulow argues, because there is no “state action.” It’s just private citizens.
And that is all the airtime the crazies are going to get from me.
⭐️
What else do we know about what’s been submitted? Anything surprising? Or exactly what we would have predicted?
WaterGirl
I considered using little bunny emojis to separate the sections to help keep me calm.
Omnes Omnibus
I don’t think the law can survive judicial review
ETA: Have at me.
WaterGirl
@Omnes Omnibus: I assume that you think that even this supreme court couldn’t let this law stand without
being laughingstocksmaking a mockery of the institution they serve?mvr
It’s really too bad that a similar law with respect to gun sales could not be passed in California or NY in time to wind up before the court for the same issues.
WaterGirl
@mvr: What if you could sue your neighbor for looking at pornography?
Omnes Omnibus
@WaterGirl: It’s just horribly written legislation. Abortion rights aside.
WaterGirl
What if you could sue your neighbor if you suspected he was abusing his wife or children?
Old School
When is the Supreme Court expected to issue their decision? Is this a “wait until July 2022” situation? Or should it be soon?
WaterGirl
What if you could sue your neighbor if he had a drink at lunch or after work and then drove home?
WaterGirl
@Old School: I read that it’s on the “rocket docket”, but someone else will have to explain what that means in practical terms.
I hope the SC doesn’t punt on this, putting it off until the Mississippi case that we think they hope to use to overturn Roe v. Wade.
(Do I have that right? Is it Mississippi?)
mvr
@WaterGirl: My point was that if the gun law were before them at the same time there would be no way they would rule that this form of law is beyond challenge and review. Not that I want the parallel gun law on the books.
karen marie
Didn’t the author of SB8 boast that this was in fact what he set out to do — create a law that could both violate constitution and evade judicial review?
Bill Arnold
How would the US Supreme Court distinguish between the Texas abortion provider bounty and bounties for things that the Federalist Society approves of?
E.g. a bounty approach to allow citizens to assess unconstitutional wealth taxes and sue for them, with the state taxing the proceeds at a very high but less than 100 percent tax rate?
I’ve seen better examples but don’t recall them.
WaterGirl
@mvr: I understood what you were getting at. I was just suggesting that there are a whole lot of different ways that laws like this could be turned on them.
JPL
@Omnes Omnibus: phew So glad that my neighbor can’t spy on me. Alito might disagree though.
karen marie
@WaterGirl: Wouldn’t there be a need to prove the underlying accusation in order to prevail? That’s what I don’t understand about SB8 – in order to successfully sue someone for assisting another person in obtaining an abortion (or for abusing their family), wouldn’t you have to prove that an abortion was in fact obtained (or a person was abused)?
And how do you do that without having access to the person’s medical record? Wouldn’t release of a third party’s medical record by a medical provider be a HIPAA violation?
The whole thing is so stupid, I can’t believe it’s viable even as it stands.
Betty
@WaterGirl: Yes, it is Mississippi. So here we are hoping sanity prevails. It shouldn’t have to be this way. And Stephen Breyer remains an ass for not resigning to ensure that one seat can be preserved for our side. His arrogance is shocking.
mvr
@WaterGirl: OK, thanks. Got it. I missed it the first time.
mvr
@karen marie: You don’t get to have the loser pay court costs if they can’t prove the charge. So you lose money even if you win.
karen marie
@mvr: That’s true.
debbie
@Omnes Omnibus:
Wouldn’t you think ALEC could have hired better writers???
JPL
If the Supreme Court were to allow bounty hunting on one law, it would open the door to all other types of laws.
It won’t stand, but the result will be just outlawing it.
zhena gogolia
@Omnes Omnibus: Did you see Tom Cotton today saying to Garland, “Thank God you’re not on the Supreme Court”? These assholes have no respect for anything.
WaterGirl
@karen marie: Yeah, but imagine the right-wing groups that would offer to pay their legal bills if they sued someone on this, and then you or I would have to hire the attorney, have he disruptions and stress and expenses.
It’s horrible, any way you look at it
edit: Maybe every woman who gets sued should automatically claim publicly (not in statements in court) that the man associated with the person who sued is the one whose baby it is? Either the man himself or the woman’s brother or sister or whatever.
If this law stands, it’s basically the Wild West.
Pete Mack
New York or Cali needs to pass a law stat that is written this way that the majority USSC doesn’t like. Maybe one that allows outside lawsuits against cops, say, or against gun dealers.
debbie
I don’t know if Kay’s around or if she means it when she says she could give a shit about central Ohio, but Issue 7 is every bit as egregious as Abbott’s bullshit. From the city’s website:
No one can get interviews with the guys who originated the issue, not even the local Fox station. No one’s come forward, period. Some people see this as First Energy All Over Again.
Many people are starting to think this could serve as a template for absconding with funds without any accountability. It kind of reminds me of Kasich’s Ohio Means Jobs baloney which had zero accountability to anyone other than Kasich.
Be forewarned!!!
debbie
@zhena gogolia:
I’d have come back with “Pity you weren’t killed on the field of battle.”
I’m not as polite as Garland.
Geminid
People talk as if all we have to do is have a state pass a law that allowed bounties for citizens reporting assault gun purchases, and the Supreme Court could not strike down that law without striking down the Texas law, because, you know, that’s only logical. This Supreme Court!?
Kay
@debbie:
I never said I “could give a shit about central Ohio”. I said the northern part of Ohio believes that Columbus gets all the resources, which is…true :)
Both that we believe it and that you- all get everything. What’s it like down there in luxury-land, debbie? In your MANSIONS.
But seriously. That looks awful. I’ll look into it and thanks for posting it.
debbie
@Kay:
We’re nothing compared to the Heights! ?
Almost Retired
I just did a quick review of the “summary” section of the Texas and US briefs, which were filed minutes ago, while I remain on hold for a conference call.
Texas is arguing that the US has no jurisdiction or standing (no legal right to even try and enjoin the law). The US, it claims, hasn’t been harmed “by the mere existence of an allegedly unconstitutional state law that may affect private parties.” And (I’m oversimplifying), the Feds can’t come after the state because there is no connection between the State officials and the enforcement of the challenged law (i.e., the State is not enforcing anything – it’s all been delegated to private citizens, so you can’t sue us). That’s Texas’ position.
The US is arguing that it has indeed been harmed in the sense that the US has a sovereign interest in protecting the supremacy of the federal constitution and preventing a state from nullifying Supreme Court precedent by drafting the laws to thwart judicial review. Which Texas admits it did. And there are State actors involved, the US argues, because the federal definition (FRCP 65) of “state actors” includes not just officers, agents, servants, employees of the State, etc. but also other persons who are “in active concert or participate with the State or the other specific individuals.” This, the US argues, includes those with delegated enforcement power, as well as State employees who facilitate enforcement, such as the clerks who accept the filing, the Judges who adjudicate the claims and enforce judgments, etc. So, yeah, Texas, nice try.
The US position, of course, seems like a waaaay better argument, but who knows with the jokers on the Supreme Court. I’m trying to figure out if there’s a way the Supremes can punt on this without making a difficult decision yet.
hueyplong
Cotton may have been over the top so he can say on Fox News that he’s the subject of a personal vendetta when Garland’s DOJ indicts him in connection with Jan 6.
Kent
Gun laws?
Even better would be environmental laws based on this same principle.
Come up with a long list of environmental crimes and let any citizen sue and claim their $10k bounty from any company caught polluting in any way, including say, nonpoint source pollution from dairy farms and hog farms and such.
Or animal rights legislation whereby any citizen could sue any chicken or hog farm for not complying with strict animal welfare standards.
Kay
@debbie:
We’re like “could we have some public defender money?” “NO. It all stays here“. Okay, sorry to bother you. We’ll pay them in old tires. Copper wires. Whatever we can scrounge.
laura
I’m going to keep saying it they ain’t stopping at Roe. This Court is coming for the Right to Privacy, for Marriage, for “personhood”, for Voting, for Brown, for guns up in our grills wherever we go, for unaccountable power of the political right, for religious bigotry, to dismantle the administrative and regulatory state. These fascist fuckers are making the big move and they are braying about it at Federalist Society shindigs all over the place with Mitch and Amy and Alito and the panty sniffers who do the foot soldiering with the laws and the briefs and the visions of Gilead.
Burn this fucking patriarchy to the ground.
Spanky
@Almost Retired: I’m thinking that even Amy & Brett understand that letting the TX law stand is opening a million cans of worms for themselves, but I also recognize the power of a cult.
JPL
@laura: yup
Geminid
@debbie:
@Kay: I see that Sherrod Brown has endorsed Dayton Mayor Nan Whaley for Governor. Assuming she gets the nomination, do you think Whaley has a shot against the Republican nominee, whether DeWine or Renacci?
TriassicSands
His arrogance is
shockingnormal.It was the same arrogance that kept RBG on the SCOTUS despite her age and deteriorating health.
laura
And another thing; Imani Gandy is absolutely on fire and she and Rewire News deserves every kind of signal boost than can be had. I will be listening to oral arguments on Monday and following the Rewire live feed and commentary.
RaflW
I saw last week that the TX GOP (or some elected members of it) are claiming that because TX never repealed their “DOMA” law, that private citizens can ignore same-sex marriages.
If the fucking god damned shitheads at SCOTUS let SB 8 sail along, I suspect that’ll be tacit acknowledgement that they’ll wink over LGBTQ marriage too. Maybe the states can’t void the marriage, but citizens can just treat us like we’re dirt, and we lose grounds to sue for discrimination.
Evil people are in too many high places.
Almost Retired
@Spanky: That’s exactly my thought. When Brett sobers up, he’s going to recognize that this could be a recipe for chaos. Imagine this: The State of Texas and the US prohibits restrictive covenants and housing discrimination. However, Texas allows private citizens to sue the Real Estate and Escrow Agents for damages if a home within a designated zone is sold to a person of color. That seems like an extreme example, but is it really any different?
jonas
The conundrum facing the 6 right-wing justices is how to craft an opinion that allows laws like this only to be used to enforce conservative policies, not liberal ones, like gun control. That’s gotta be keeping them up at night because that Texas law is sooooo fucking cool!
Dan B
@WaterGirl: It seems that some next steps will be for private citizens to sue when children are “exposed” to trans people, or to displays of affection by gay or lesbian couples. Will interracial couples be next? There could be quite a few “think about the children” / “protect our children” type of laws that get support from an uninformed public. The CRT message is to avoid upsetting straight white people. It’s the means to portray poor manners as terrible as genuine discrimination. With impolite behavior you don’t lose your home, your job, or your life but it’s as close as many straight white people get to that level of suffering. It feels as though the words “uncomfortable” and “discomfort” were ficus group tested in some right wing think tank. Is it just a coincidence that this pair of words has popped up in thousands of places at the same time?
WaterGirl
@laura: What’s the link to the live feed?
WaterGirl
@Dan B: Like I said, the Wild West. Horrible. Like going back in time x1000.
WaterGirl
@Almost Retired: Thanks for weighing in on this. Just what I was hoping for!
Pete Mack
@Geminid:
You misunderstand. The court has not decided on constitutionality, only on standing. Getting a firm grip on constitutionality will allow lower courts to cite precedent.
Dan B
@RaflW: There are exemptions to marriage equality on religious grounds but there are conflicting court rulings. A North Carolina judge ruled that a gay man was fired by a religious institution because he married (might have been he got engaged) his male partner, therefore it was discrimination based upon gender.
Jim Appleton
Left a comment in reply to Brendancalling in a dead thread below.
Civil war is here and this is one manifestation. I tend to think bloody violence is still unlikely, but this type of violence — and state legs acquiring authority to overrule legal elections, school board lunatic protests, vaxximorons …
You get the picture. It’s all violence in service of a civil war.
If it gets worse, it will likely happen incrementally, at least at first. Nutjobs don’t have numbers or stamina to sustain widespread Charlottesville or 1/6.
But their egghead coward stringpullers can sure fuck things up good.
laura
@WaterGirl: https://www.supremecourt.gov/oral_arguments/live.asp
The podcast will commence after oral argument, not during. Apologies for the error.
https://rewirenewsgroup.com/multimedia/podcast/the-supreme-court-could-annihilate-roe-v-wade-next-week/
Almost Retired
@Omnes Omnibus: I agree with you. The fact that Texas gets no cut of the bounty (unlike the Qui Tam laws or California’s Private Attorney General Act) was a nice touch in trying to avoid the “State action” component. But the law is still a Constitutional mess and reads like it was drafted by a committee of ESL students and Capitol insurrectionists.
WaterGirl
@laura: Thanks for the link to the Supreme Court live arguments.
What is the link to the Rewire live feed and commentary. Or maybe I am misunderstanding your comment?
Geminid
@jonas: What’s to stop them from saying that gun rights are explicitely protected by the Constitution, while women’s reproductive freedom is not? I’m not saying they will go that route, but they could.
However, in the firearms case that is up this term, I think they will uphold the New York state ordinance in question as permitted under Heller‘s allowance for reasonable state regulation of firearms. At least I hope they will.
Kay
@Geminid:
I don’t think Ohio Democrats really grappled with the amount of misogny we saw here with Clinton. I heard it from Democrats. People can say it was her personality or too far Right or whatever, but I know what I heard. Clear as a bell.
But Whaley will probably get it. Sherrod is a big endorsement. I’ll enthusiastically support her, but I don’t envy her. It will be rough.
WaterGirl
@laura: Okay, I think I’m getting it. What you were calling their live feed is a podcast? But they’ll be doing it live discussing the oral arguments after they are over?
laura
@WaterGirl: the link to Rewire is intended for anyone who wants to listen to Imani Gandy and Jess Pieklo’s legal analysis and commentary on their Boom! Lawyered podcast. Yep, you got it ?
SpaceUnit
Obviously the conservative court wants to nullify Roe vs Wade. But my guess is that they want to do so on a more solid and foundational basis. I think they’d prefer a case in which they can grant personhood to embryos, laying the groundwork to extend constitutional protections to the unborn.
The Texas bill is just a lot of bugfuckery and I’m sure each and every one of the justices realizes it. I don’t think they’re ready to set their robes on fire just yet.
I’m rarely an optimist these days, but I don’t see SB8 holding up. What’s that? No, I haven’t been drinking.
brendancalling
@Jim Appleton: thanks for the late reply. You’re right. It’s war by means other than guns and troops.
Geminid
@Pete Mack: Well, that certainly sounds logical.
Baud
In re American Women.
debbie
@Almost Retired:
Hey, thanks for this. It’s very helpful for this schlub!
Kay
@Geminid:
I like that Whaley focuses on corruption in state government. God knows someone should. It gets worse every year. They seem untouchable.
debbie
@Kay:
There’s always chickens…
Seriously, there’s not much money for public defenders anywhere in this state. The Ohio GOP is starving the judicial system so it fits in a small, very rusty cistern.
E.
I can’t see them upholding this thing but if they do, it will sure signal something very, very new in how this country carries itself. It will be a real turning point because there is no way to justify this other than as a pure act of power. (As Adam is always saying.) If this thing passes, who can say we are not in a cold civil war?
Original Lee
@Kent: I like the way you think:
Baud
@SpaceUnit:
Why the hell not?
SpaceUnit
@Baud:
Well okay, it just turned 5 o’clock here in Denver.
debbie
@Kay:
She’ll really have to be tough as nails. The GOP has already tried to connect her to a federal bribery scandal in Dayton. She’s disavowed it, but they’re implying sinister motives on her part. (This link looks like it has the search warrant.)
Kay
@debbie:
I’m going to Columbus for the Bds of election meeting next month. They have a big session every year. I’ll mill around ultra casual with the wingers and try to suss out the insurrection plans. Plots, I suppose, is the term. “Hi guys! Any sedition afoot?” Maybe more subtle.
Kay
@debbie:
I saw that. It’s so ham handed. “We’re corrupt? No, YOU’RE corrupt!” She really struck a nerve there.
Cacti
FTFY
Gin & Tonic
@Baud: I’ve been picking up the slack.
Ohio Mom
I was off-line most of the day and just recently logged on, mainly looking for news about the fate of Build Back Better.
Can’t find anything less than several hours old, so anything could be happening. Or not.
I’m having flashbacks about waiting for Ohio Dad’s heart valve replacement surgery to be over. I’m making a mental note to not follow any more sausage making.
Of course sussing out what the SC will do next isn’t any easier to read about. I might go move the laundry into the dryer.
debbie
@Kay:
Save the subtle. They’re idiots, constantly tripping over their egos in their eagerness to brag about their exploits. You wouldn’t be able to shut them up!
debbie
Sounds like fun.
RaflW
@Dan B: James White, State Representative House District 19 is going way past that.
It is another effort to say the US Constitution and the Supreme Court can’t touch private citizens. (Or so I read it, IANAL)
Baud
@RaflW:
I don’t even know what that means.
sab
OT Ponyo had hersurgery yesterday. I was up all night keeping her from chewing her surgical parts. Today I figured out how to work her E collar and she is upset. Not furious, more like deeply betrayed. Sigh. Her E collar is an inflatable ring around her neck. I might give her a taste of the actual plastic E collar so that she maybe realizes what we tried to spare her. She is not too bright but very trusting. Last two days have been devastating. She trusted me to protect her, but she isn’t intelligent enought to know that I mostly did.
Omnes Omnibus
@Baud: It is a half-assed shot at Supremacy Clause unconstitutional. I know… I know….
Ksmiami
@Omnes Omnibus: with this so called Supreme Court- anything is possible
Baud
@Omnes Omnibus:
I think Texas is unconstitutional.
Raven
@sab: she’ll be ok.
Omnes Omnibus
@Baud: It is as good a theory are the other one. Hell, better.
oatler
https://www.dailykos.com/stories/2021/10/27/2060573/–When-do-we-get-to-use-the-guns-TPUSA-audience-member-asks-Charlie-Kirk-at-Idaho-event
cain
If they want to open the flood gates for that kind of action.. let’s see what happens in New York where all that finance people are. Putting the nations wealth in jeopardy by allowing all kinds of shit to happen bounty hunter style against banks will make SCOTUS and the GOP to squeal like pigs.
ETA: Like most things the GOP and these actors – they only think in short term. They are opening the doors to the human condition to wreck havoc on everything – they will not be able to contain it.
RaflW
My broader point is that the GOP is not stopping at abortion, or trans student athletes, or their complete misapprehension of CRT. If private citizens can enforce this wild abortion bounty law, but also just personally negate settled law on marriage, we’re (as Adam might say) though the looking glass.
Oh, and by private citizen, I’d expect that TX lawmaker to mean anyone not officially an agent of the state. Not just refusing to bake ‘gay cakes’ but refusing to accept funeral instructions by a gay spouse. Or medical decision making at a ‘christian’ charity hospital. The whole nine yards.
Omnes Omnibus
@RaflW: Thatcher once said, “There is no such thing as society.”
MomSense
I don’t think I’m capable of discussing this issue anymore. The whole process of having our bodies and our autonomy litigated feels like an assault.
Peale
@RaflW: Yep. Its pretty dismal. I think the next laws will go after gays, immigrants, and trans children. Texas is basically arguing that they can outlaw anything and leave the enforcement to bounty hunters who don’t have to show harm, interest, cause, or anything.
For LGBT+, Texas will outlaw sodomy. If you attempt to get married, or have gotten married, see yourself in court to prove that you have not had sex with your partner or pay $10,000.
For Trans children, they’ll outlaw the treatment and enable people to sue the parents and doctors.
For immigrants, the bounty will force them to go to court to prove that they aren’t undocumented. Having the last name of Mendoza or Cruz should be enough to get you to have to drive 1/2 way across Texas to prove that you have a green card.
I don’t think there’s much they can do to teachers of CRT. They’ll already be fired.
The supremes might back all of it as long as it doesn’t enable anyone to sue their employer. So no suing your employer because you have to work for a black person or gay person or woman. Yet.
rekoob
@Original Lee: @Kent: In the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, better known as “Superfund”), Section 310(a) “allows citizens to file a civil action (civil suit) against any person, including a Federal agency, that is alleged to be in violation of any CERCLA standard, regulation, condition, requirement, order, or IAG (Interagency Agreement). In addition, CERCLA § 310(a) allows citizens to file a civil action against the President or any other officer of the United States (including the EPA Administrator and the Administrator of the Agency for Toxic Substances and Disease Registry) for alleged failure to perform any non-discretionary act or duty. “
In practice, I believe it’s been weakened by Executive Orders and subsequent regulations, but there were a lot of polluters in the early 80s worried about the Sierra Club or the NAACP or Tribal Governments coming after them. Not exactly analogous to the topic at hand, but an interesting example of an attempt to have citizens take action when elected officials seemed to be dragging their feet.
rekoob
@rekoob: Further to my earlier post, I am *not* endorsing the SR/SB 8 claims by Texas. I’m noting that, at least in some environmental legislation of the late-70s and early-80s, there was support for the idea that citizens may need to be able to act when government officials do not.
Zelma
I’m with John. Things really are dire. I don’t draw historical parallels readily but there are enough similarities between now and pre-Hitler Germany cause me grave concern. The Nazis created street violence and then Hitler ran the promise to end the horrors of street violence. The Nazis (and the conservatives) ran on the “Big Lie” that the fatherland had been betrayed in 1918. The Nazis identified and otherized minorities as enemies of true Germanism. Ambitious conservative politicians went along with the radicals as a way to gain and/or maintain power. The opposition was divided; the left and the center were more interested in battling each other than in addressing the true threats and seemed unable to confront the real problems of the country. A significant portion of the elites were anti-democratic and more than willing to pursue a bargain with the devil to protect their power.
I would be the first to admit that the current situation and Germany in 1932-33 are by no means identical. Certainly German liberal democracy had much more shallow roots than ours. And there were perhaps fewer guardrails against extremism. But liberal democracy is a fragile flower and I fear we are watching it being stamped on,
sdhays
@rekoob: Not a lawyer, but it seems like pretty solid law that a state can allow private citizens to enforce Constitutional state laws in the civil courts.
The issue in Texas, as I understand it, is that Texas is granting powers to citizens that the state itself does not possess. The idea that Texas can delegate random powers it doesn’t itself possess is fucking absurd. It’s basically the joke about selling someone the Brooklyn Bridge, but arguing that if I buy the bridge from you (who does not own said bridge), the bridge does in fact become mine.
A functioning, even “conservative”, Supreme Court would have retched at reading it before slapping an injunction on it with prejudice. And it’s so awful that even our Fascist Court will probably be forced to shut it down sooner rather than later. I can only surmise that they’re agonizing over how to save this wretched law, or give guidance on how to write such a law that wouldn’t just bring everything down if it were upheld.
Ksmiami
@MomSense: I at this point realize our system is failing in real time. We either institute reforms, or the experiment is done
Ksmiami
@laura: as long as I get to be the one dragging acb out by them hem of her gown…
Rekoob
@sdhays: @Original Lee: @Kent: Completely agree. This is unconstitutional on its face, and they should get thrown out immediately. Kent offered a hypothetical relating to the environment, which Original Lee endorsed, and in the cobwebs of my mind I recalled a provision in CERCLA that, while not analogous to the situation here, had the citizens’ element that the SR/SB 8 purports to offer. I’m also not a lawyer (but close kin to several) — my experience is more on the regulatory side with electric utilities.
burnspbesq
@Almost Retired:
Ironically, enough, the Supreme Court decision that stands squarely for the proposition that judicial action is state action—Shelley v. Kramer—involved enforcement of racially restrictive covenants.
If Sekulow didn’t address Shelley in his brief, that’s yet another ethical violation. When is the fucking D.C. Bar going to kick his ass?
dopey-o
What we are overlooking here is our tendency to fight the previous war. Putin is not re-fighting the siege of leningrad, he is using next-stage asymmetrical tactics. Less risk, less cost.
The next american civil war has already begun with Covid responses. ALEC and redstate legislatures are trying to nullify the constitution because actual, physical secession is not possible. The Texas abortion law is another opening shot.
Without passage of the Voting Rights Act, i expect a Biden 2024 win to be overturned by GOP legislators in Florida, Georgia, Pennsylvania, Ohio, Michigan, Wisconsin and Arizona. At which point, the Confederacy will have won without firing a shot.
Mike in Pasadena
How about this for a state law that would get the right wing’s attention: a state passes a law that enables individuals to sue anyone entering a church or synagogue for violating the state law banning religious observances. Can the federal DOJ sue the state to overturn that law as unconstitutional because it violates the First Amendment? As right wingers argue in the Texass case, the DOJ can’t because suits by the civilian litigants are not state action. Never mind that the state’s law banning religious observances is a state action. No doubt Texas is also arguing that a case by the DOJ isnt ripe because no one has been harmed. Ignore the fact that the churches have been shuttered or in the Texas law all the abortion clinics are closed.
The above is an example of what the Texans are dismissing scornfully as a “parade of horribles.”
What am I missing?